(with whom MULLIGAN, TIMBERS and MESKILL, Circuit Judges, concur), dissenting:
In Fisher v. City of New York, where plaintiff’s complaint seeking money damages was dismissed, this Court said:
Insofar as plaintiff’s claim is based, not on the Civil Rights Act, but directly upon Section 1 of the Fourteenth Amendment to the United States Constitution, we affirm on the ground that plaintiff has not stated a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
312 F.2d 890, 891 (2d Cir.), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963).
Our Brothers in the majority have now arrived at a completely contrary holding. In doing so, they do not tell us whether Judges Medina, Waterman and Moore erred in deciding Fisher as they did or whether these able judges were simply interpreting a different Constitution from the “modern Constitution” which the majority herein purport to construe.
The majority justify their holding by stating that they are simply creating a “[structure] for enforcement similar to *172those normally fashioned by legislatures.” They say that they are “[invigorating] the political process,” that they are indulging in “judicial rule-making” which they liken to “legislative activity,” and that they are thus opening a “dialogue with Congress.”1 With all due respect for our Brothers’ good intentions, we do not believe that a decision of such incalculable impact as the one they now make can be justified as simply the opening of a “dialogue with Congress”2 *or that it comports with this Court’s constitutional role in a democratic society.
I
Commentators who advocate the judicial adoption of a “modern Constitution” tend to look with disdain upon the intentions of those who labored so hard to frame the written document. That standards of interpretation should be based upon these intentions is labeled as a “filiopietistic notion” completely out of place in what these advocates are convinced is a more enlightened age.3 Judges are more circumspect. Rare indeed is the judge who will concede that his decision departs in the slightest from the meaning and intent of the carefully prepared text. The American public must be “mercifully soothed” into a belief that each judicial pronouncement, no matter how autocratic, is made in compliance with the people’s constitutional mandate.4 However, a court which pays only lip-service to a “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms,”5 is derelict in fulfilling the obligations so carefully imposed upon it by the framers of our Constitution. Consistent with this belief, we deem it important to reexamine, even though briefly, the role that the federal judiciary was designed to play in our democratic society.6
A.
Students of constitutional history are agreed that one of the primary factors which motivated the authors of our Constitution was the fear of unchecked power in the institutions which they created.7 It is clear, moreover, that this apprehension was not directed against the legislative branch *173alone.8 Unlimited judicial power was to be guarded against, and this meant, among other things, that the judiciary was to be precluded from participating in the legislative process.9 “Judiéis est jus dicere non dare”10 was an established maxim of the English law which served as a guide and inspiration for the constitutional framers. Rufus King, one of the Constitutional delegates, stated “that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.”11
One may wonder how we have moved from the clearly documented position of the framers of the Constitution to the position taken by the majority herein, as illustrated in the above quoted passages from Chief Judge Kaufman’s opinion. The answer is that, as a practical matter, the only restraint upon the power of the federal judiciary is that which is self-imposed.12
One need only skim through the all too numerous Supreme Court dissents to recognize that on occasion judicial activism has been checked with a very loose rein.13 Sometimes this has pleased the so-called conservatives; at other times it has gratified the so-called liberals. During the early decades of the twentieth century, those who are today’s staunchest supporters of judicial activism were the most vocal critics of the Supreme Court’s “usurpation” of congressional powers in striking down social and welfare legislation.14 When the focus of the judiciary swung from property rights to personal rights, a new and different set of critics came to the fore.15 The issue, as these critics see it, is not one of liberalism versus conservatism, but one of representative democratic government versus judicial autocracy.16
It is obvious that the majority herein, in an attempt to avoid the charge that their decision is undemocratic, have opted, lock, stock and barrel, for the concept of a “constitutional common law” espoused by Professor Monaghan.17 Professor Monaghan *174asserts that due process holdings may be either “pure” constitutional or “quasi”-constitutional in nature, or they may be broken down into pure and quasi-constitutional components. Pure constitutional holdings, he says, may be modified only by constitutional amendment. As to the quasi-constitutional holdings which he calls the “common law” of the Constitution, Congress is now to play the “checks and balances” role which the constitutional framers intended for the Supreme Court. As Professor Mon-aghan puts it, “[WJhere the Court’s rule is perceived to have gone too far, it can be rejected or modified by the political process without the necessity of a constitutional amendment.”18
Unfortunately, calling the end product “constitutional common law” does not change the nature of the process by which it is reached. That, purely and simply, is judicial legislation, defined euphemistically by the majority as opening a “dialogue with Congress” or “invigorating the political process.” “Invigoration” means that courts are to take the legislative initiative, with Congress following docilely behind, confronted after each judicial decision with the problem of deciding whether the court was legislating (constitutional common law) or judging (pure constitutional law). When the majority say that Congress is unlikely to negate its ruling in this case, they do more than “hazard a conjecture.” If the lay members of Congress can determine what part of the majority’s holding is “pure” constitutional law and what part is “constitutional common law,” they are more perceptive than the writer of this opinion.19
In any event, the majority do not answer the charge of over-reaching by conceding that Congress may have the right to “reverse” its decision in whole or in part. The issue here is not whether any part of the majority’s holding can be discarded by Congress; it is whether the American people, speaking through their Congress and their written Constitution, have authorized this Court to permit an award of damages against municipalities directly under the Fourteenth Amendment. We are satisfied that anyone who reads the history of this Amendment and of 42 U.S.C. § 1983 without “a preconceived determination to attain a particular constitutional goal”20 will conclude that they have not.
In the seminal case of Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961), the Court, speaking of the Ku Klux Klan Act of April 20, 1871, now in part § 1983, said, “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts . . . .” In Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972), the Court said, “Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.” In Lynch v. Household Finance Corp., 405 U.S. 538, 543, 92 S.Ct. 1113,1117, 31 L.Ed.2d 424 (1972), the Court said, “In fact, the Congress that enacted the predecessor of §§ 1983 and 1343(3) seems clearly to have intended to provide a federal judicial forum for the redress of wrongful deprivations of property by persons acting under color of state law.”21 If these were correct statements of the law, and we con-*175elude that they were, there was no federal right of action directly under the Fourteenth Amendment. The history of the enactment of the Fourteenth Amendment fully supports this conclusion.
B.
This Amendment had its genesis in the Civil Rights Act of 1866, 14 Stat. 27, which was passed over President Johnson’s veto on April 9th of that year. This Act provided that all citizens, regardless of color, shall have the same right “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property . . . Violation of the Act by any “person” under color of law was made a misdemeanor, and federal courts were given jurisdiction of all causes, civil and criminal, arising out of the Act.
Fearful that the Act might be repealed by a subsequent Congress and in doubt as to its constitutionality, its supporters pushed actively for a constitutional amendment along similar lines.22 In February 1866, Congressman Bingham, one of those who questioned the constitutionality of the Civil Rights Act of 1866, introduced a bill in the House proposing the following constitutional amendment:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.23
Although this bill was not passed, its similarity to § 5 of the Amendment which was submitted to the States for ratification on June 13, 1866, is readily apparent.
Equally apparent were the intentions of the supporters of the proposed Amendment. Speaking on behalf of this original bill, Congressman Bingham said, “I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights ” 24 Thereafter, Congressman Stevens, in introducing the proposed Amendment to the House, said, “[T]he Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.”25 Senator Howard, who introduced the proposed Amendment in the Senate, said of § 5, “It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendments are carried out in good faith, and that no State infringes the rights of persons or property. I look upon the clause as indispensable for the reason that it thus imposes upon Congress this power and this duty.”26 Public opinion, at least in the North, was that the Fourteenth Amendment “gave Congress the power to define and secure the privileges of citizens of the United States.”27
Clearly, the draftsmen of the Fourteenth Amendment intended to give Congress the power to enforce. its provisions. The Supreme Court acknowledged this to be so in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. *176676 (1880). Speakihg of § 5 of the Fourteenth Amendment, the Court said:
All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission, to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.
Id. at 345-46 (emphasis in original).
Although the majority dismiss Ex parte Virginia out of hand as “resurrected” authority, eminent Supreme Court justices have treated it more kindly. Eighty-six years after Ex parte Virginia, Justice Black, dissenting in Harper v. Virginia Board of Elections, cited it with obvious approval and said:
Moreover, the people, in § 5 of the Fourteenth Amendment designated the governmental tribunal they wanted to provide additional rules to enforce the guarantees of that Amendment. The branch of Government they chose was not the Judicial Branch but the Legislative.
* * * * * *
Thus § 5 of the Fourteenth Amendment in accordance with our constitutional structure of government authorized the Congress to pass definitive legislation to protect Fourteenth Amendment rights which it has done many times, e.g., 42 U.S.C. § 1971(a). For Congress to do this fits in precisely with the division of powers originally entrusted to the three branches of government — Executive, Legislative and Judicial.
383 U.S. 663, 678-80, 86 S.Ct. 1079, 1088, 16 L.Ed.2d 169 (1966).
In 1966, Justice Brennan, speaking for the Court in Katzenbach v. Morgan, also cited Ex parte Virginia with approval and said:
A construction of § 5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment.
384 U.S. 641, 648, 86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966) (footnote omitted).
Four years later, in Oregon v. Mitchell, Justice Douglas added:
Equal protection became a standard for state action and Congress was given authority to “enforce” it. See Katzenbach v. Morgan, 384 U.S. 641, 647, [86 S.Ct. 1717, 16 L.Ed.2d 828]. The manner of enforcement involves discretion; but that discretion is largely entrusted to the Congress not to the courts.
400 U.S. 112, 135, 143, 91 S.Ct. 260, 274, 27 L.Ed.2d 272 (1970) (separate opinion).
As recently as 1976, Justice Rehnquist, writing for the Court in Fitzpatrick v. Bit-zer, spoke of Ex parte Virginia in the following language:
The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under § 5, were examined at length by this Court in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880).
427 U.S. 445, 453, 96 S.Ct. 2666, 2670, 49 L.Ed.2d 614 (1976). The Court further stated:
In that section Congress is expressly granted authority to enforce “by appropriate legislation” the substantive provi*177sions of the Fourteenth Amendment
Id. at 456, 96 S.Ct. at 2671.
If the foregoing quotations have any meaning, Ex parte Virginia has not been “resurrected” by appellee; Ex parte Virginia has never been dead.
We are not met in this case with the interesting question of whether this Court might create municipal liability if Congress had not already acted. Congress has acted.28 It promulgated the Ku Klux Klan Act of 1871, whose “primary purpose” was to enforce the provisions of the Fourteenth Amendment,29 and in that Act it excluded municipalities from liability.30 Although Congress may have been mistaken in believing that it was without power to make municipalities liable for the unlawful acts of its agents, “we must construe the statute in light of the impressions under which Congress did in fact act . . . 31 We are concerned with the intent of Congress, not with its motive. Moreover, there has been no indication that Congress has changed its mind.
The majority opinion notes that Congress had failed to overrule Monroe v. Pape, supra, in the sixteen years since that case was decided. Yet, reasoning that congressional silence is a poor indicator of congressional intent, the majority decline to “find guidance in congressional inaction.” One may well ask how this squares with the majority’s earlier statement that they wish to conduct a “dialogue” with Congress. One may also ponder how it is that a court which is prepared to equate inaction upon the part of police officials with a “de facto departmental policy” can find no guidance whatever in congressional inaction.
There are several indications that Congress is not displeased with Monroe v. Pape. Although bills to overrule it have been introduced repeatedly since 1962,32 the only *178one even to reach the hearing stage was S. S5.33 Testimony on S. 35 was heard on February 8 and 9 of this year, and additional hearings have been scheduled.34
The failure of Congress to take action on any of the bills cannot be explained by congressional failure to give attention to the subject of civil rights. Since Monroe v. Pape, Congress has passed at least seven acts which deal in whole or in part with civil rights.35 Significant among these statutes is Title VII of the Civil Rights Act of 1964.36 In setting up a system of administrative remedies for individuals discriminated against by any “person” in employment, § 701(a) of the Act defined “person” to include individuals, labor unions, partnerships, etc. In 1969, the United States Civil Rights Commission issued a report which found that state and local governments were not providing equal job opportunities and recommended that § 701(a) be amended to include them within the definition of “person.”37 The Equal Employment Opportunity Act of 1972 incorporated the Commission’s recommendation. The definition of “person” in § 701(a) was amended by § 2 of the 1972 Act to include “governments, governmental agencies [and] political subdivisions.” 38
Clearly, Congress knows how to amend the definition of “person” to include municipalities.' Its failure to do so with § 1983 takes on added significance when it is recognized that just such a change was recommended by the United States Civil Rights Commission in 1961, 1963 and 1965.39
These post-Monroe developments in the legislative branch are strong indications that Congress does not favor municipal liability. If there is to be any meaning at all in the concept of a “dialogue” between the courts and Congress, it must come from the courts being as willing to listen to Congress as to have Congress listen to them. In this case, Congress can be plainly heard.
C.
The majority seek to support their position with the Supreme Court’s holding in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, in his opinion for the Court, Justice Brennan quite carefully pointed out that “we have here no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents . . . .”40 In the instant case, we do have a specific congressional declaration that recovery may be had against “persons” and a clear congressional intent that “persons” does not include “mu*179nicipalities.”41 Because of that fact, Al-dinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), is more pertinent authority. In Aldinger, the plaintiff, who had been discharged without a hearing from her job as a county clerical worker, brought suit against certain county officers as well as the county itself. Plaintiff alleged a violation of § 1983 in that her discharge violated her rights under the First, Ninth and Fourteenth Amendments. In addition, she asserted a claim against the county under state law for the tortious conduct of its officials. She contended that the district court was empowered to hear the state law claim under the doctrine of either pendent or ancillary jurisdiction. In rejecting this claim, the Court said:
But the question whether jurisdiction over the instant lawsuit extends not only to a related state-law claim, but to the defendant against whom that claim is made, turns initially, not on the general contours of the language in Art. Ill, /. e., “Cases . . . arising under,” but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties, whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that “civil action” over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff’s claim of additional power over a “pendent party,” the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress.
Id. at 16-17, 96 S.Ct. at 2421 (emphasis in original).
Although the question of § 1331 jurisdiction was not considered by the Aldinger Court,42 we believe the same reasoning should apply in this case. Municipalities which Congress excluded from liability in § 1983 should not be brought back into the liability fold under § 1331 simply by adding to the complaint an allegation that the amount in controversy exceeds $10,000.
In sum, then, we believe that a cause of action for damages is not inherent in the provisions of the Fourteenth Amendment. The responsibility for implementing these provisions was delegated expressly to Congress. Congress has accepted this responsibility and created a comprehensive legislative scheme for the protection of the civil rights of the citizenry. Although this scheme has been subjected to constant searching scrutiny, Congress has never seen fit to bring municipalities within its scope. This Court should not usurp that legislative prerogative.
II
Despite the arguments advanced above, the fact remains that the five judges constituting the majority herein have the power to expose every city, town and hamlet in the Second Circuit to incalculable liability under the Fourteenth Amendment, subject only to being overruled by the United States Supreme Court.43 We have stated why we think the exercise of that power is improper. We now suggest a number of reasons why we think it is unwise.
*180The choice of remedial relief should not be exercised in a factual vacuum. Before we set out on the laudable pursuit of justice, we should have some notion of where we are going. “There can be no wisdom in the choice of a path unless we know where it will lead.”44 From the earliest days of our country, men of wisdom have expressed concern over the power of the judiciary to impose financial burdens upon state and local governments.45 This concern was one of the main reasons for the enactment of the Eleventh Amendment.46 Moreover, the proposed Sherman Amendment to § 1983, which would have allowed recovery against municipalities, was rejected in large part because of the devastating effect these damages might have on municipalities.47 In recent years, the Supreme Court has expressed increasing concern about the effect of lower court decisions on the financial stability of communities and the consequent impairment of their ability to render essential governmental services.48
As Justice Blackmun did in City of Lafayette v. Louisiana Power & Light Co., we “question the nonchalance with which the Court puts aside the question of remedy.”49 The majority state in one breath that they recognize the “financial plight of local governmental bodies”50 and in another that municipalities are “well-suited to spread the cost of compensating the victims of tortious governmental behavior.” Our Brothers simply cannot have it both ways.51
There is a substantial distinction between Bivens and the present case, which they do not discuss, and that is the vast difference in the scope of the causes of action under consideration. Bivens permitted recovery against federal officers who violated the Fourth Amendment; the majority allow recovery against municipalities for Fourteenth Amendment violations. The Fourteenth Amendment incorporates or absorbs most of the provisions of the Bill of Rights. Its due process clause makes applicable to communities all of the provisions of the first eight amendments except Two, Three, and Seven, the indictment clause of Five and the excessive bail clause of Eight.52 As interpreted by the Supreme Court, the Fourteenth Amendment may be violated by conduct which offends “traditional notions of fair play and substantial justice,”53 *181which “shocks the conscience,”54 or which conflicts with “deeply rooted feelings of the community.”55 Future interpretations of the Fourteenth Amendment can only be the subject of conjecture.56 Due process is an open-ended, indefinite concept which defies precise definition.57 The Constitution is said to have been drawn “with purposed vagueness so as to leave room for the unfolding future.”58 Dissents evolve into majority holdings,59 and stare decisis in this area is a concept of limited application.60
The equal protection clause blends into the due process clause because they both stem from the concept of fundamental fairness.61 It too sets standards of conduct somewhat less definitive than the 55 miles per hour speed limit.62 The differences within the Supreme Court concerning discrimination based upon wealth indicate a direction in which future litigation over equal protection may be heading.63 We have said that case by case inquiry is required for a determination as to whether equal protection standards have been met,64 and this procedure may be satisfactory when the judicial answer is a simple “Aye” or “Nay”. However, if the “Nay” is to be accompanied by a verdict for substantial damages, it is possible that the concept of fundamental fairness will become somewhat lopsided in its application. Municipal officials cannot go, hat in hand, to the nearest federal judge to secure a ruling in advance as to the constitutionality of every proposed ordinance or the proper school in which to place every minority student. They can secure such a ruling only after they have been sued.65
During the year ending June 30, 1977, more than 13,000 civil rights cases were filed in the United States District Courts.66 This is 8,000 more than were filed in 1971 and represents about ten per cent of the entire volume of civil suits commenced.67 In this Court, fourteen per cent of all civil appeals during the 1976-77 year were civil *182rights cases.68 According to a survey by Americans for Effective Law Enforcement, civil rights suits against police officers have increased from 2,000 in 1971 to over 6,000 in 1977.69 Because, as the majority construe the law, the failure of supervisors to control police behavior may create a “de facto departmental policy,” it blinks reality to assume that municipalities will not be included as parties defendant in most actions of this type. As the district court observed in this case, there are approximately 30 law suits pending in the District of Connecticut alone in which claims similar to the present one have been brought against municipalities.
More important, perhaps, than any of the foregoing is the likelihood of a marked increase in societal litigation under the class action provisions of the Federal Rules of Civil Procedure, with staggering amounts at stake in each case.70 It has been suggested that the Constitution may not require judges to undertake the “vast redistribution of wealth” which could result from litigation of this sort, and that some form of limited immunity should be developed.71 The majority, however, tiptoe around this problem by declining to express their view as to the circumstances, if any, under which such immunity might be appropriate. Perhaps they deem this determination to be part of the mopping-up-after-the-Second-Circuit role that Congress will be forced to play in the legislative “dialogue” which they have commenced.
Judges should consider the economic and social consequences of their decisions and should gauge the wisdom of their acts by the results which are likely to ensue.72 There is, we think, a painful likelihood that our Brothers’ decision will act as a catalyst in the exacerbation of social friction, of which, unfortunately, there is already too much in this great Country. Should this come to pass, it will benefit neither the courts nor the Country.73
The majority also avoid the question whether a “good faith” defense will be available to the communities located in New York, Connecticut and Vermont. Government officers and employees sued under § 1983 are entitled to either absolute or qualified immunity. Absolute immunity has been accorded to judges,74 legislators,75 and prosecutors.76 Qualified immunity is available to other governmental employees in the form of a “good faith” defense against liability. Briefly stated, a municipal or state employee is not liable in damages for constitutionally prohibited conduct if he acted with a reasonable, good faith belief that he was not violating the plaintiff’s constitutional rights.77 The consensus *183among the circuits appears to be, however, that a municipality is not entitled to the defense of “good faith.”78
This is a matter to which the majority should speak. Although our Brothers carefully refrain from outlining the entire picture they have only begun to paint, they must complete at the least that portion of the canvas which is directly before them. They say that the plaintiffs suit is premised on the contention that the Board of Police Commissioners knowingly encouraged members of the department to violate plaintiff’s civil rights and that, therefore, the question of municipal immunity is not an issue in the case. We disagree. The majority assume that the Police Board is the City. It is perhaps more accurate to say that the mayor and the common council are the City. The Police Board may be operating at a “policy-making” level and yet be formulating policies which are contrary to the intentions of the City fathers. If this proves to be so, the question of municipal good faith will be squarely in the case. If the majority intend to impose no-fault constitutional liability upon West Haven for erroneous policy-making decisions of its officials, they should say so. The people who live in the Second Circuit are entitled to know where this Court is taking them, even if there is nothing they can do about it.
The majority should also make clear whether they intend their “modern” constitutional rule to apply to legislative as well as executive officers, so that our communities will know whether they are to be held financially liable for the enactment of ordinances which prove to be unconstitutional. In the field of constitutional law, consensus in interpretation is not the judicial norm.79 This case, with its five-four split among the judges, is no exception. If the Supreme Court accepts review and reverses, the majority will suffer only an injury to their pride.80 The majority should tell us whether a similar error in judgment by the community fathers in some hamlet in upstate New York or in the hills of Vermont will subject their community to liability in damages. These communities should know that if they enact an ordinance which subsequently is declared to be unconstitutional, this Court’s present holding may require them to respond in damages.81
Unlike Bivens, this case does not deal with individual defendants but with units of government created by the state. They are entrusted and charged with the primary responsibility of delivering basic support services to their residents.82 Federal intervention which impairs their ability to render such services raises questions of comity and federalism which were not before the *184Court in Bivens83 If intervention is to come from the federal government, it should come from Congress, not the courts.84 This is especially true where the question of intervention is under active consideration by the legislative branch. Congress is better equipped to determine the “complex factual questions of the kind so often involved in constitutional adjudication.”85 For example, Congress has already had the benefit of the thinking of the Attorneys General of all 50 states who have voiced their unanimous opposition to S. 35, on which Congress is now holding hearings. Conceding, for the argument, that our Brothers are able to make wise decisions without inputs of this nature, the fact remains that Congress is the elected voice of the people and “presumptively has popular authority for the value judgment it makes.”86
We are not prepared to accept the argument of those who say that “the democracy of legislative and executive politics is overstated” and that an “imperfectly antidemocratic judicial process” is therefore justified in taking over for an “imperfectly democratic political process.”87 We leave to historians the question whether “usurpation” of legislative processes by the judiciary has contributed to any imperfections which may exist in the federal democratic process. However, we need not wait for the voice of history to turn us from excessive interference by the federal judiciary in the affairs of community government, where the democratic ideal retains its greatest vitality.
We have been forceful and comprehensive in our comments because we do not believe that the residents of the Second Circuit should be “mercifully soothed” into the belief that the majority’s decision concerns merely a minor incident involving a West Haven police officer. Insofar as municipal liability for Fourteenth Amendment violations is concerned, this case is the crossing of the Rubicon. Once this Court has exposed municipalities to liability, it strains credulity to believe that it will discontinue its invigoration of the political process and confine future decisions to the narrow factual and legal situation here presented.88 Today’s decision must be viewed in the light of what it portends for tomorrow’s.
We bring this dissent to a close with two quotations, one from a great American jurist and one from a black school principal in Cleveland, Ohio. We quote them together, because in their own way they are each saying the same thing. Dissenting in Baldwin v. Missouri, Justice Holmes said:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I be*185lieve to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.
281 U.S. 586, 595, 50 S.Ct. 436, 439, 74 L.Ed. 1056 (1930).
In explaining why the citizens of Cleveland voted against an increase in school taxes, the principal said: 89
There was the busing issue, a feeling of getting back at the judge, and also the frustration of having no part in making judgments that affect our lives. It is just a gut feeling, that people need to have a say in their lives.
We would affirm.
. We are not advised by our Brothers whether the State Courts of New York, Connecticut and Vermont must follow in their footsteps, or whether this is a uniquely federal cause of action. Compare Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Copper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), with Stone v. Powell, 428 U.S. 465, 482-86, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). See also H. Monaghan, The Supreme Court 1974 Term — Foreword: Constitutional Common Law, 89 Harv.L.Rev. 1, 38-40 (1975). Of course, there is no monetary jurisdictional limit which must be met in the state courts. Indeed, if H.R. 9622, which was passed by the House on February 28, 1978, is enacted into law, the amount in controversy requirement will be eliminated from all federal question cases in the federal courts.
. “Judicial review is inherently adapted to preserving broad and flexible lines of constitutional growth, not to operate as a continuously active factor in legislative or executive decisions.” E. Rostow, The Democratic Character of Judicial Review, 66 Harv.L.Rev. 193, 198 (1952).
. A. Miller & R. Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U.Chi.L.Rev. 661, 683 (1960).
. See A. Bickel, The Least Dangerous Branch 92 (1962). Professor Forrester writes that the time has come for candor; that if judges are not basing their decisions on law in any usual sense but “are, in fact, legislating under the guise of judging,” they should be frank and say so. W. Forrester, Are We Ready for Truth in Judging?, 63 A.B.A.J. 1212 (1977).
. Griswold v. Connecticut, 381 U.S. 479, 501, 85 S.Ct. 1678, 1691, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring).
. “Clio [the muse of history] deserves no throne; but may she not claim a corner seat at the conference table?” L. Henken, Some Reflections on Current Constitutional Controversy, 109 U.Pa.L.Rev. 637, 657 (1961).
. “That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and most central tenet of American constitutionalism.” L. Tribe, American Constitutional Law 1-2 (1978).
. National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 647, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting); see also R. Berger, Government by Judiciary 303 (1977).
. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 7-8 (2d ed. 1973); Berger, supra note 8, 300-11; see also Griswold v. Connecticut, 381 U.S. 479, 513 n.6 (1965) (Harlan, J, concurring).
. “It is the duty of a judge to administer, not to make laws.” Lofft, No. 42 (1790). The following quotations also illustrate the centuries-old English tradition of judicial restraint:
Though in many other countries everything is left in the breast of the Judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law.
3 W. Blackstone, Commentaries * 335.
We cannot make a law, we must go according to the law. That must be our role and direction.
Parkyns’ Case, 13 How.St.Tr. 72 (1696) (per Holt, C. X).
. 1 Farrand, The Records of the Federal Convention 97-98, 109 (1911) (quoted in Hart and Wechsler, supra note 9, at 8).
Alexander Hamilton thought, somewhat naively, it turns out, that judicial encroachment upon legislative authority could be prevented through the impeachment process. See Federalist No. 81 at 526-27 (quoted in Berger, supra note 8, at 294).
. Trop v. Dulles, 356 U.S. 86, 119, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (Frankfurter, J, dissenting); United States v. Butler, 297 U.S. 1, 79, 56 S.Ct. 312, 80 L.Ed. 477 (1936) (Stone, J., dissenting).
. See, e. g., Harper v. Virginia Board of Elections, 383 U.S. 663, 677-78, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (Black, J., dissenting).
. See Berger, supra note 8, 312-37; Tribe, supra note 7, 446-49; A. Miller & R. Howell, supra, 27 U.Chi.L.Rev. at 674; see also Griswold v. Connecticut, 381 U.S. 479, 522-27, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Black, J., dissenting).
. See Berger, supra note 8; Bickel, supra note 4; L. Hand, The Bill of Rights (1958); Henken, supra, 109 U.Pa.L.Rev. 367.
. “The critics start from the assumption that, in a political society which aspires to representative democracy or at least to popular representation, exercises of power which cannot find their justification in the ultimate consent of the governed are difficult, if not impossible to justify.” Tribe, supra note 7, at 48.
. H. Monaghan, supra note 1, 89 Harv.L.Rev. 1 (1975).
. Id. at 29.
. Like the Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 407 n.7, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlan, J., concurring), the majority carefully refrain from identifying that portion of their holding which is subject to “reversal” by Congress. As Congress would have to be painfully aware, any determination that it makes in this regard could be promptly overruled by this Court.
. Oregon v. Mitchell, 400 U.S. 112, 154-55, 91 S.Ct. 260, 280, 27 L.Ed.2d 272 (1970) (Harlan, J., concurring and dissenting).
. In District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 605, 34 L.Ed.2d 613 (1973), the Court stated that “the primary purpose of the 1871 Act was ‘to enforce the Provisions of the Fourteenth Amendment.’ ” The language which the Court quoted was taken from the caption of the Act itself. See 17 Stat. 13.
. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Hurd v. Hodge, 334 U.S. 24, 32-33, 68 S.Ct. 847, 92 L.Ed. 1187 (1948).
. See Oregon v. Mitchell, 400 U.S. 112, 160, 91 S.Ct. 260, 283, 27 L.Ed.2d 272 (1970) (Harlan, J., concurring and dissenting).
. See Adamson v. California, 332 U.S. 46, 102, 67 S.Ct. 1672, 1701, 91 L.Ed. 1903 (1947) (Black, J., dissenting).
. Id. at 104, 67 S.Ct. at 1702 (emphasis in original).
. See Katzenbach v. Morgan, 384 U.S. 641, 648 n. 8, 86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966).
. Adamson v. California, 332 U.S. at 110, 67 S.Ct. at 1705 (Black, J., dissenting) (quoting Flack, The Adoption of the Fourteenth Amendment 153-54 (1908)); see also Berger, supra note 8 at 225-29.
. We, of course, do not suggest that the judiciary may never enforce the Fourteenth Amendment. See, e.g., Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). We simply believe that § 5 places primary responsibility for enforcement on Congress and that at least where Congress has indicated an intent, that policy ought to be respected by the courts. See Kostka v. Hogg, 560 F.2d 37, 42-43 (1st Cir. 1977).
. District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).
. The Supreme Court has found that the legislative history of this Act wholly rejects the notion that municipalities can be held liable:
The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word “person” was used in this particular Act to include them.
Monroe v. Pape, supra, 365 U.S. at 191, 81 S.Ct. at 486 (footnote omitted).
This view was reiterated more recently in Moor v. County of Alameda, where the Court stated:
[T]he proposal was rejected in toto, and from this action we cannot infer any congressional intent other than to exclude all municipalities . . . from the civil liability created in the Act of April 20, 1871 and § 1983.
411 U.S. 693, 710, 93 S.Ct. 1785, 1796, 36 L.Ed.2d 596 (1973) (emphasis in original) (footnote omitted).
. Moor v. County of Alameda, 411 U.S. 693, 709, 93 S.Ct. 1785, 1796, 36 L.Ed.2d 596 (1973).
. S. 2983, 87th Cong., 2d Sess. (1962) (sponsored by Sen. Hart); H.R. 10120, 87th Cong., 2d Sess. (1962) (sponsored by Rep. Dingell); H.R. 10951, 87th Cong., 2d Sess. (1962) (sponsored by Rep. Diggs); S. 1215, 88th Cong., 1st Sess. (1963) (sponsored by Sen. Javits); H.R. 3932, 88th Cong., 1st Sess. (1963) (sponsored by Rep. Dingell); H.R. 6030, 88th Cong., 1st Sess. (1963) (sponsored by Rep. Ryan); H.R. 630, 88th Cong., 1st Sess. (1963) (sponsored by Rep. Moorehead); H.R. 6334, 88th Cong., 1st Sess. (1963) (sponsored by Rep. Hawkins); H.R. 5427, 89th Cong., 1st Sess. (1965) (sponsored by Rep. Ryan); H.R. 10876, 90th Cong., 1st Sess. (1967) (sponsored by Rep. Diggs); H.R. 8396, 92d Cong., 1st Sess. (1971) (sponsored by Rep. Ryan; see also his remarks at 117 Cong.Rec. 14918-23 (1971)); H.R. 11827, 93d Cong., 1st Sess. (1973) (sponsored by Rep. Metcalfe; see also his remarks at 119 Cong. Rec. 39929-30 (1973)); H.R. 549, 95th Cong., 1st Sess. (1977) (sponsored by Rep. Metcalfe); H.R. 5535, 95th Cong., 1st Sess. (1977) (sponsored by Rep. Metcalfe); H.R. 4514, 95th Cong., 1st Sess. (1977) (sponsored by Rep. Mitchell); H.R. 6151, 95th Cong., 1st Sess. (1977) (sponsored by Rep. Mitchell); H.R. 6677, 95th Cong., 1st Sess. (1977) (sponsored by Rep. Mitchell); H.R. 7520, 95th Cong., 1st Sess. (1977) (sponsored by Rep. Mitchell); S. 35, 95th Cong., 1st Sess. (1977) (sponsored by Sen. Mathias) (amended for clarification, 123 *178Cong.Rec. S16560-61 (daily ed. Oct. 6, 1977)); see also S.Rep.No. 26, 95th Cong., 1st Sess. 12-13 (1977); Causes of Popular Dissatisfaction with the Administration of Justice: Hearings Before the Subcom. on Constitutional Rights of the Senate Comm, on the Judiciary, 94th Cong., 2d Sess. 62 (1976).
. Supra note 32.
. 124 Cong.Rec. D117 (daily ed. Feb. 8, 1978); id. D129 (daily ed. Feb. 9, 1978).
. The Civil Rights Act of 1964, Pub.L.No. 88-352, 78 Stat. 241 (1964); Act of April 11, 1968, Pub.L.No. 90-284, 82 Stat. 73 (prescribing criminal penalties for violations of civil rights); Act of Nov. 25, 1970, Pub.L.No. 91-521, 84 Stat. 1356 (1970) (authorizing appropriations for Civil Rights Commission, and amending Civil Rights Act of 1957); Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103 (1972); Education Amendments of 1972, Pub.L.No. 92-318, 86 Stat. 235 (1972); Act of Oct. 14, 1972, Pub.L.No. 92-496, 86 Stat. 813 (1972) (authorizing appropriations for Civil Rights Commission, and amending Civil Rights Act of 1957); The Civil Rights Attorney’s Fees Awards Act of 1976, Pub.L.No. 94-559, 90 Stat. 2641 (slip ed. Oct. 19, 1976).
. Pub.L.No. 88-352, 78 Stat. 253 (1964).
. H.Rep. 238, 92d Cong., 1st Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 2137, 2152-54.
. 42 U.S.C. § 2000e(a) (Supp. V 1975).
. See Mahone v. Waddle, 564 F.2d 1018, 1060 (3d Cir. 1977) (Garth, J., dissenting and concurring).
. 403 U.S. at 397, 91 S.Ct. at 2005.
. See note 30, supra.
“It is one thing for the Court to authorize damages where Congress has not spoken to the question, but it is quite another for it to do so where Congress has.” M. Yudof, Liability for Constitutional Torts and the Risk — Averse Public School Official, 49 S.Cal.L.Rev. 1322, 1356 (1976).
. See Aldinger v. Howard, 427 U.S. 1, 4 n.2, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976).
. Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law. B. Cardozo, The Nature of the Judicial Process 129 (1921).
. Id. at 102.
. See J. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 Colum.L. Rev. 1413, 1428-29 (1975).
. Id. at 1444.
. City of Kenosha v. Bruno, 412 U.S. 507, 519, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (appendix to opinion of Douglas, J., dissenting in part).
. See, e.g., National League of Cities v. Usery, 426 U.S. 833, 846-52, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); G. Frug, The Judicial Power of The Purse, 126 U.Pa.L.Rev. 715 (1978); cf. Ingra-ham v. Wright, 430 U.S. 651, 682, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Mathews v. El-dridge, 424 U.S. 319, 347-48, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). But see City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (upholding anti-trust remedies against cities acting in a proprietary capacity).
. 435 U.S. 389, 442, 98 S.Ct. 1123, 1152, 55 L.Ed.2d 364 (1978) (Blackmun, J., dissenting).
. Approximately 50 per cent of the cities with populations over 500,000, and 25 per cent of those over 50,000, are reportedly in economic distress. See U.S. News and World Report 211 (April 10, 1978). The financial problems of our largest metropolis, New York City, are matters of common knowledge.
. Incantation of the talismanic word “insurance” will not make the financial plight of municipalities disappear. Insurance does not drop like manna from heaven. Every dollar and more that an insurance company pays out, it takes in. Insurance premiums for municipalities have risen drastically in recent years, and in some instances carriers have refused to write municipal liability insurance altogether. When the door is opened wide to class litigation seeking damages for alleged Fourteenth Amendment violations, insurance coverage, if available at all, will be at a cost commensurate with the risk.
. H. Friendly, Federalism: A Foreword, 86 Yale L.J. 1019, 1027 (1977).
. Shaffer v. Heitner, 433 U.S. 186, 206, 207, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683 (1977).
. Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
. Haley v. Ohio, 332 U.S. 596, 604, 68 S.Ct. 302, 306, 92 L.Ed. 224 (1948) (Frankfurter, J., concurring).
. In Davis v. Passman, 571 F.2d 793, 799 (5th Cir. 1978) (en banc), where the court refused to imply a damage remedy under the due process clause of the Fifth Amendment, it said: “[In fact,] the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable and that there is simply no way a court can judge whether this remedy will be appropriate for securing the right in future situations.”
. See F. Frankfurter, Memorandum on “Incorporation” of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv.L.Rev. 746, 749-54 (1965).
. Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491, 59 S.Ct. 595, 604, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring).
. Id.
. New York v. United States, 326 U.S. 572, 590, 66 S.Ct. 310, 90 L.Ed. 326 (1946) (Douglas, J., dissenting); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-13, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).
. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
. See Lewis v. Cohen, 417 F.Supp. 1047, 1051-55 (E.D.Pa.1976).
. “It is far too late in the day to contend that the Fourteenth Amendment prohibits only racial discrimination; and to me, singling out the poor to bear a burden not placed on any other class of citizens tramples the values that the Fourteenth Amendment was designed to protect.” James v. Valtierra, 402 U.S. 137, 145, 91 S.Ct. 1331, 1335, 28 L.Ed.2d 678 (1971) (Marshall, J., dissenting); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
. Kennedy Park Homes Association v. City of Lackawanna, 436 F.2d 108, 112-13 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 929 (2d Cir. 1968).
. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945).
. 1977 Annual Report of the Director of the Administrative Office of the United States Courts table 11 at 82 (prelim, ed.).
. Id.
. Id., table B7 at A-10.
. U.S. News & World Report, April 3, 1978, at 39.
. In In re United States, 565 F.2d 19 (2d Cir. 1977), which has been bouncing between the Southern District and this Court since 1973, see Socialist Workers Party v. Attorney General, 510 F.2d 253 (2d Cir. 1974), damages of some forty million dollars are demanded from various officials of the government and the F.B.I.
. Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L. Rev. 922, 958 (1976). The limited immunity concept is simply another way of saying that the Constitution mandates recovery from municipalities by some people, but not by all. It undercuts the whole argument in favor of a constitutional right of recovery.
. B. Cardozo, The Gravity of Law 116-17 (1924).
. In his article, Federalism: A Foreword, supra, 86 Yale L.J. at 1027-28, Judge Friendly discusses the great increase in federal court supervision of state institutions and the imposition of affirmative obligations on the states. He concludes with the observation, “The risks of confrontation are serious.”
. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975).
. See Owen v. City of Independence, 560 F.2d 925, 934 (8th Cir. 1977); Kostka v. Hogg, 560 F.2d 37, 41 (1st Cir. 1977); Hander v. San Jacinto Junior College, 519 F.2d 273, 277 (5th Cir. 1975); see also Hostrop v. Board of Junior College, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976) (school board held liable despite good faith of individual members).
. Wood v. Strickland, 420 U.S. 308 (1975); id. at 329, 95 S.Ct. 992, 43 L.Ed.2d 214 (Powell, J., concurring and dissenting); Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
. There are those who advocate that municipalities should be held liable for erroneous constitutional decisions by its judges. See J. Newman, Suing the Law Breakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers’ Misconduct, 87 Yale L.J. 447, 462-63 (1978).
. Municipalities need not be as lawless as historic Tombstone, Arizona to enact ordinances which violate the Fourteenth Amendment. No one would suggest that Skokie, Illinois is a lawless community. However, see Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978) and Village of Skokie v. National Socialist Party of America, 69 Ill.2d 605, 14 Ill.Dec. 890, 373 N.E.2d 21 (1978); see also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed. 943 (1967); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).
. See City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 442,. 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (Blackmun, J., dissenting).
. Cf. id. at 426, 98 S.Ct. 1123 (Stewart, J., dissenting); id. at 426, 98 S.Ct. 1123 (Blackmun, J., dissenting); National League of Cities v. Usery, 426 U.S. 833, 847, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Younger v. Harris, 401 U.S. 37, 44 — 45, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
. “[I]t is indeed an odd business that it has taken this Court nearly two centuries to ‘discover’ [the] constitutional mandate” which compels its present decision. Coleman v. Alabama, 399 U.S. 1, 22, 90 S.Ct. 1999, 2010, 26 L.Ed.2d 387 (1970) (Burger, C. J., dissenting).
. Oregon v. Mitchell, 400 U.S. 112, 247-48, 91 S.Ct. 260, 327, 27 L.Ed.2d 272 (1970) (Brennan, J., concurring and dissenting).
. Id. at 207, 91 S.Ct. at 306 (Harlan, J., concurring and dissenting).
. Tribe, supra note 7, at 51.
We likewise decline to join our Brother Oakes in endorsing the philosophy that, so far as the judicial branch of the government is concerned, “it cannot be consent which is the sole touchstone of legitimacy.” We are content to adhere to the old-fashioned but not out-moded doctrine that ours is a government “by the people, for the people.”
. That decisions on constitutional issues should be avoided whenever possible is an established principle of constitutional adjudication. Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975). Disregard of this principle, as in Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977) does not inspire confidence that future adjudications in this area of the law will be marked by judicial restraint.
. New York Times, Apr. 16, 1978, at 24, Col. 2.