The Legal and Political Theory Of Constitutional Rights
Protections From Government Misconduct
U.S constitutional rights, almost without exception, only provide protection against individualized personal harms caused by "state action", i.e. from wrongs fairly attributable to the government.
These protections are imperfect. See, e.g., the City of Greenwood Village case, qualified immunity, the lack of vicarious liability on the part of government employees for constitutional rights they violate in the course of their official duties, the availability of money damages only for intentional violations of constitutional rights (with remedies that are far more limited for rights not articulated in the constitution), undue deference to the testimony and legal stances of government officials, etc.
But, this does not mean that these protections are worthless. Governments pay billions of dollars a year in damages for violations of constitutional rights, and not infrequently change their unconstitutional policies and practices, either under a consent decree in litigation or by court order. Criminal charges are dismissed or reduced for violations of the constitutional rights by law enforcement officials every day that the courts are open, and convictions are reversed for violations of constitutional rights in the criminal justice process on a regular basis even if they don't make up a huge percentage of all convictions.
While not all wrongs by government actors are remedied, the share of the most serious wrongful government actions that significantly harm particular individuals that are remedied is not negligible. Many people wrongfully convicted of crimes and sentenced to long prison terms or to death are eventually (often painfully slowly) exonerated.
The due process rights afforded to the people routinely prevent or remedy unfair or arbitrary government actions and regulations. Many instances of big dollar harm caused by wrongful government conduct produce economically significant monetary settlements paid by, or judgments against the government, and the government almost always eventually pays all of its legally determined obligations (and vast numbers of legal obligations that are never legally adjudicated as well). In some areas of law, like immigration, the quality of justice provided is lower. In other areas of law, like condemnation of private property for public use, the quality of justice provided (while rarely perfect) is comparatively consistent and adequate.
Protections From Private Misconduct
The theory is that Congress and state governments protect people from wrongs to their individual rights committed by non-state actors and that we rely on the political process to assure that elected officials make this happen, by having legislators pass laws necessary to do so, by having executive branch and judicial branch officials carry out those ordinary laws.
The constitution does not provide protections for you life, liberty, or property from non-governmental actors. It is an international outliner because it does not compel law enforcement to take action to enforce the criminal laws that are on the books for the benefit of any particular individual. See Castle Rock v. Gonzales. It does not guarantee due process when a private party wants to employ self-help to interfere with your property rights or your freedom of speech.
In many cases, even when the authority of the state is invoked in litigation to enforce a right against a private individual in court, this is not considered "state action" for purposes of determining whether it abridges your constitutional rights in a manner that you have a legal right to enforce.
Most of the time, the system works. The circumstances under which non-constitutional law authorizes self-help without due process or interference with other private person's lives without your consent are few. Most of the time, law enforcement and prosecutors enforce the criminal law to the extent that they are able to do so. Most of the time, when the criminal justice system fails to act.
When there is a fairly broad consensus on what private conduct should be regulated by law and what due process and other limitations should limit private law and criminal law regulation of that conduct, this isn't a problem and elected officials do the right thing. But as the United States is seeing its normative consensus break down before our eyes, and a willingness to use tactics that earlier generations would have disavowed has emerged, simply relying on the political process to protect private law rights has become increasingly problematic.
The Problem Of Unrestrained Abuses That Government Is Supposed To Prevent
But, the legal and political theory behind the U.S. constitution and the American political economy provides little backstop, apart from the Second Amendment right to bear arms, against individualized harms caused by means other than state action, or by the state's failure to enforce laws that it has a near monopoly right to enforce.
Under U.S. law, the state may, even with ill intention, deny a person the full protections that they are supposed to be afforded to protect their life, liberty and property from harm at the hands of non-state actors.
The government may decline to provide private causes of action for private violations of an individual's rights that would be actionable deprivations of constitutional rights if the government were the party that deprived an individual of their rights. The government may, without violating the constitution, authorize or prohibit individual acts of self-help that the government could not take itself.
The government may even, in many cases, allow its courts and the remedies available to enforce court judgments to be used to take actions violating individual constitutional rights that the government could not violate itself, without providing the individual whose rights are violated with a constitutional law remedy, or even, any remedy at all.
Increasingly, government actors are intentionally conspiring with private actors to use these methods to undermine their political opponents, and to carry out policies, in ways that they could not do alone as a result of the U.S. Constitution.
The Unavailability Of Redress For Illegal Governmental Operations
Individual Constitutional Rights
The most of the litigation involving the United States Constitution involves individual rights that it establishes and regulates, primarily involving the First, Second, Fourth, Fifth, Sixth, Seventh, Eight, Eleventh, Thirteenth, and Fourteenth Amendments to the United States Constitution. The first ten amendments were added in 1791, with the 11th Amendment adopted not long afterwards and the 13th and 14th Amendment adopted not long after the U.S. Civil War.
A few provisions of the pre-amendment United States Constitution of 1789 also establish or regulate individual rights that give rise their utilization in litigation: the powers of Congress in Section 8, the powers denied to Congress in Section 9, and the powers denied to the states in Section 10 of Article I, he jurisdiction of the federal courts, the jury trial and venue requirements for federal crimes, and the definition of treason in Article III, the full faith and credit clause, the privileges and immunities clause, and the extradition process in Article IV, and the Supremacy Clause of Article VI.
There are a variety of ways that someone harmed by a violation of their individual constitutional rights can seek remedies, the most common of which are (1) a suit under 42 U.S.C. § 1983 for damages caused by an intentional violation of a constitutional right under color of state law, (2) a direct appeal of a criminal conviction on the grounds that it was obtained in violation in a constitutional right after that right was invoked by a convicted defendant in a trial court proceeding in a criminal case, (3) a writ of habeas corpus asserting that someone is detained under color of state law under a manner that is unconstitutional, and (4) an action for a writ of mandamus, an injunction, or declaratory judgment that clarifies that some sort of state action in unconstitutional and insisting the the government act properly. This list isn't exhaustive, but it covers the main remedies.
Other Aspects Of The Constitution
The remainder of the United States Constitution of 1789, and the remaining seventeenth amendments to the United States Constitution, relate to the political and electoral process, has been repealed, clarifies default principles of interpretation that are rarely expressly invoked (the Ninth and Tenth Amendments), or provide for situations (domestic quartering of soldiers in private property under the 3rd Amendment, and the Republican government clause) that almost never arise and are to some extent redundant.
In most cases, however, the doctrine of "standing to sue" limits the extent to which these parts of the Constitution can be litigated in court because an ordinary citizen with no particularized harm from violations of these parts of the constitution other than as a citizen, a voter, or a taxpayer, similarly situated with everyone else, is prohibited from enforcing these legal requirements in court.
The main enforceable protected individual right under this part of the constitution is the individual right to vote. But, because everyone is often equally harmed, for example, by improper government spending or misapplications of the political process, the end result is often that violations of these aspects of the law can be carried out with impunity.
Also, even when someone has standing to seek to redress misconduct in government operations, the violations are often considered to be non-justiciable, for example, because they are "political questions" or because the person engaging in misconduct has some sort of absolute or qualified immunity from liability for the conduct in question.
No comments:
Post a Comment