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Shortcomings of the Thomas-Scalia view of Wilkie v. Robbins and Damage Remedies for Violations of Constitutional Rights:

As promised in my last post, I will now critique the Thomas-Scalia view of Wilkie v. Robbins. The two most conservative Supreme Court justices categorically reject the principle - most clearly established in the 1971 case of Bivens v. Six Unknown Federal Agents - that federal courts may sometimes exercise the power to order the government to pay damages in order to remedy the violation of a constitutional right. As explained in Thomas' concurring opinion (joined by Scalia):

The Court correctly concludes that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend Bivens even if its reasoning logically applied to this case. "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., joined by THOMAS, J., concurring). Accordingly, in my view, Bivens and its progeny should belimited "to the precise circumstances that they involved." Malesko, supra, at 75.

Thomas and Scalia believe that Bivens was wrongly decided, and its reach should be limited as much as possible. As I noted in my previous post, the Thomas-Scalia view - unlike Justice Souter's majority opinion - has the virtue of treating property rights the same as other constitutional rights. All will receive the same (sometimes inadequate) level of protection.

But that is about the only virtue of the Thomas-Scalia view. In other respects, it is seriously flawed.

The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution. In some cases, an award of damages is the only adequate remedy available, or even the only possible remedy of any kind. Consider, for example, the case of an innocent man victimized by an unconstitutional search or seizure. The standard remedy of the exclusionary rule is useless to him - at least if he is going to be acquitted anyway. The only feasible way to compensate him for the violation of his rights is an award of damages.

In some cases, other remedies are available, but they are not sufficient to fully remedy the violation of the victim's rights. The Wilkie majority opinion concedes (and Thomas and Scalia do not dispute) that this was true in Wilkie itself. In such situations, it is axiomatic that the courts have a duty to provide a remedy that fully compensates the victim for the violation of his constitutional rights. Any other approach is both unjust to the victim and provides poor incentives for the government by allowing it to avoid bearing the full cost of its actions.

Justices Thomas and Scalia seem to believe that judicial decisions ordering a damages remedy somehow constitute judicial policymaking in a way that decisions ordering other kinds of remedies do not. I agree that damage remedies are sometimes unwise and often inferior to other available remedies. However, I don't see why a damage remedy is inherently more "activist" or more intrusive on the powers of the political branches than alternative remedies such as injunctive relief or facial invalidation of a statute - remedies that Thomas and Scalia consider to be perfectly legitimate. In many cases, an injunction or invalidation of a statute will actually constrain the political branches more than damage payments do.

Some defenders of the Thomas-Scalia position argue that the choice of remedy for rights violations by federal agents should be left up to Congress. If Congress provides an adequate remedy by statute, perhaps the courts should indeed defer to it even if the judges would personally prefer some other remedial scheme. Often, however, Congress will provide either an inadequate remedy or no remedy at all. Congress often cannot be trusted to provide adequate remedies for violations of constitutional rights for exactly the same reasons that it cannot be trusted to refrain from enacting policies that cause rights violations in the first place. The institution of judicial review is necessary precisely because the legislative and executive branches will often be tempted to exceed constitutional limits on their authority. That temptation applies to both rights violations and remedies. Indeed, a legal regime under which the government can get away with refusing to remedy violations of constitutional rights is little different from one without any constitutional limits on government power at all.

OrinKerr:
Ilya writes:
The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution.
Ilya, what authority would you cite for that? Or is that just your own view?
6.28.2007 2:23am
Dilan Esper (mail) (www):
Professor Kerr, unless you want to overturn Marbury v. Madison, it seems to me that redressing governmental violations of the Constitution is at least one of the fundamental duties of the federal courts. And once that is established, Professor Somin's view flows inexorably, it seems to me.

Thank you, Professor Somin, for an articulate defense of Bivens. It is truly sad that one is even needed at this date.
6.28.2007 2:37am
OrinKerr:
Dilan,

I think you misunderstand my question. I don't dispute that redressing governmental violations is an important role for the federal courts. It's very important. But my question wasn't whether it is important: my question is whether it is "the most fundamental duty of the federal courts." I gather courts must obey the most fundamental duty before they get to the merely important duties, so the ranking of duties seems likely to determine your reaction to the case.
6.28.2007 2:52am
David Hecht (mail):
Perhaps I am being naive here, but isn't the principle at issue one of sovereign immunity? Surely Thomas and Scalia are correct in saying that it isn't the SC's prerogative to decide the limits of sovereign immunity.

When I was a federal employee, I was subject to the Federal Tort Claims Act, a limited waiver of sovereign immunity under which I could be personally sued if I exercised my authority as a federal agent not only inappropriately, but in a "willful and malicious" manner. Should not this be the sole remedy that private parties have when federal agents--as in the case under discussion--do so? Or do you in fact believe that the boundaries of the Tort Claims Act can be extended at will by the SC?
6.28.2007 3:00am
Ilya Somin:
Ilya writes:

The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution.

Ilya, what authority would you cite for that? Or is that just your own view?


I would think that it's rather obvious, but I guess it isn't, so I will spell it out. The duty of the courts is to enforce the law and provide remedies for violations of it. The Constitution is the highest law in the land, taking precedence over other law. Therefore, enforcing the Constitution and remedying violations of it is the most important duty of federal Courts.

If authority is needed to support this rather simple logic, I cite Marbury v. Madison.
6.28.2007 3:04am
Ilya Somin:
Perhaps I am being naive here, but isn't the principle at issue one of sovereign immunity? Surely Thomas and Scalia are correct in saying that it isn't the SC's prerogative to decide the limits of sovereign immunity.

There is no sovereign immunity issue here. In previous cases, all 9 justices agreed that the government does not have sovereign immunity against claims of violations of the Bill of Rights. Nor did the feds claim such immunity in this case.
6.28.2007 3:06am
Kazinski:
Now I get it, the law is what the judges think it should be. Wow, I had always thought the legislative branch decided what the law and the remedies are, and then the court interpreted the law and applied it to the facts. So I'm a little unclear on what the legislative branch does, I guess they tell the courts what they think the law should be and the court tells them where they are wrong.
6.28.2007 3:16am
OrinKerr:
Thanks, Ilya. Maybe I'm just dense, but I don't find this obvious.

It seems to me that the Supreme Court routinely declines to impose broad remedies for violations of constitution rights. The qualified immunity doctrine is one obvuous example. (See, e.g., Harlow v. Fitzgerald) The sovereign immunity doctrine is another. (See, e.g., Alden v. Maine). And the constitutional remedies themselves are often littered with exceptions. In the Fourth Amendment context, for example, the Supreme Court has said that the exclusionary rule applies only to the extent it is needed to deter wrongdoing. (United States v. Leon) This means that the Supreme Court often leaves people who had their constitutional rights violated without any real remedy (and in some cases, any remedy at all).

We can debate whether these cases are right or wrong, of course. In light of them, however, I tend to doubt that your syllogism accurately reflects existing judicial practice.
6.28.2007 3:22am
Ilya Somin:
I had always thought the legislative branch decided what the law and the remedies are, and then the court interpreted the law and applied it to the facts.

The legislature doesn't get to decide what's in the Constitution and it doesn't get to decide to leave violations of constitutional rights unremedied. Scalia and Thomas don't disagree with that - except, apparently, when it comes to damage remedies.
6.28.2007 3:23am
ATRGeek:
First, to support Ilya's claim I would start by citing the good ole' Constitution itself. Article III Section 2 states: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...." I don't think it is entirely accidental the first thing on the jurisdictional list is federal jurisdiction, and the first thing on the federal jurisdiction list is cases arising under the Constitution. As Ilya also notes, that same order of priority appears in the Supremacy Clause of Article VI.

As an aside, I will note the phrase "Cases, in Law and Equity, arising under this Constitution" strongly supports the view that the Framers intended that the federal courts' judicial power as applied to constitutional cases would include all the traditional remedial powers of the courts of common law and courts of equity. That is also the answer to Kazinski's bizarre theory that somehow the courts must wait for Congress to give them remedial powers. Definitely not: under Article III Section 1 the federal courts are vested with "[t]he judicial Power of the United States," and not, as Kaziniski would have it, "whatever judicial power Congress would like to give them." And, of course, as Ilya points out, Congress doesn't get to decide what the Constitution says either.

On the main point: I think we are seeing here the anti-constitutionalism that lies at the core of the Thomas/Scalia judicial philosophy. Although nominally textualists and originalists, if you trace through their arguments you will eventually hit these odd disjunctions where they stop talking about texts and history and start talking about concepts like the importance of democracy and the institutional incompetence of judges. And the reason they do that--have to do that--is that the text and history of the Constitution does not support their views on what judges should be doing in cases like this. So, they have to abandon their textualism and originalism and start becoming political theorists.

Their answer to Ilya's complaint, therefore, is actually: "We don't care what the Constitution says, we don't want judges telling officers in the Executive Branch what they can or cannot do, and certainly not punishing them." Again, the fact that this conclusion seems to be a wholesale departure from the very ideas of constitutional supremacy and the existence of a co-equal judicial branch is fine with them, because it turns out that they don't really believe in those ideas--no matter what the Constitution itself might say on the subject.
6.28.2007 9:04am
Reg (mail):
"The duty of the courts is to enforce the law and provide remedies for violations of it."

Court's shouldn't provide remedies, a remedy is part of a cause of action. If no remedy is provided in the law, then you don't have a cause of action. It happens all the time that laws are passed that have no remedy for those harmed by its violation. It goes beyond interpretation and application to add a remedy to a law that has not provided one.

Also, you say "The legislature doesn't get to decide to leave violations of constitutional rights unremedied." This seems obviously wrong. There are no remedies for taxpayers when their money is unconstitutionally spent, or for individuals who are harmed by those with qualified immunity. I'm sure there are many more examples I'm missing.
6.28.2007 9:05am
Reg (mail):
Also, I'd say you'd be hard pressed to support your statement that the Constitution guarantees remedies "sufficient to fully remedy the violation of the victim's rights." How can you explain immunity doctrines?
6.28.2007 9:07am
Justin (mail):
I don't believe the Seminole line of cases (including Alden) apply to constitutional rights, just statutory ones. But Orin's larger point is correct - particularly in the Fourth Amendment context.
6.28.2007 9:11am
ATRGeek:
Reg,

I will again note that the idea that the judicial power of the United States, as vested in the federal courts by Article III, would not include the power to craft remedies is contradicted by the text of Article III and indeed alien to the common law legal system that the Framers were adopting. What you and Kazinski are actually describing is something like the civil law system, which of course is still alive and well in places like continental Europe. But that is not, of course, the legal system of our Framers, nor ours.

Incidentally, I am puzzled as to why people keep citing immunity doctrine as a contradiction to these priciples. First, the various forms of immunity are generally NOT absolute, and for precisely the reason that the courts do not want to leave constitutional violations complete unchecked. But more broadly, immunity doctrine is largely judge-made as well! So, you are actually trying to point to another common exercise of judicial power in the common law sense in order to refute the very idea that federal judges have judicial power in the common law sense!
6.28.2007 9:20am
Peter Young:
Indeed, a legal regime under which the government can get away with refusing to remedy violations of constitutional rights is little different from one without any constitutional limits on government power at all.

There will always be at least a few governmental officials who will refuse to violate constitutional rights merely because they are there and even if violations of those rights are not redressable in a lawsuit for damages or other relief. One would hope there are a substantial number of such officials, although that hope might be naive.

But, apart from that, if the right is not enforceable, then yes, we might as well not have the right at all.

It's surprising to me that some would deny the courts the inherent power to fashion a remedy for a violation of constitutional rights. That is emphatically what the function of courts is--to serve as the avenue for legal redress for those whose rights have been violated. If the courts cannot afford relief for a violation of constitutional rights, the judicial power to apply and enforce the Constitution means very little. That doesn't mean the courts should not take guidance from the legislative branch, but in the absence of such guidance, they are free to devise their own remedies, guided by the considerations that have informed the common law tradition for centuries.

It's one thing to wail about judicial activisim, but quite another to strip the courts of even traditional judicial powers. An entire legal school apparently views the judiciary as acting illegitimately any time it does anything not explicitly approved by the other branches of government. For them, the role of the courts is to defer and get out of the way of the more important branches. That is not a healthy concept of the separation of powers.
6.28.2007 9:31am
magoo (mail):
"If protecting a constitutional right really is too burdensome for the government, the proper solution is a constitutional amendment curtailing the right in question - not a judicial decision refusing to protect the right because the Court believes that doing so would inconvenience the government too much."

If the Constitution is deficient in failing to provide a damages remedy for govt retaliation, the proper solution is a constitutional amendment providing for a damages remedy -- not a judicial decision that creates a damages remedy out of thin air.
6.28.2007 9:39am
ATRGeek:
Peter,

Obviously I agree, but I want to emphasize that there are a lot of folks in the world who live under exactly that sort of legal system, because that is indeed a description of the difference between the civil law system and the common law system. I think this is important to note because obviously there are arguments to be made for the civil law system, but those arguments were considered and rejected by the Framers when they incorporated the common law system into our Constitution. In other words, I think it is important to note that the issues being raised by the likes of Kazinski and Reg, and indeed Scalia and Thomas, are not at all new, so much so that they were already well-known when our original Constitution was framed--and a decision about these issues was made. So, if Reg and Kazinski (and Scalia and Thomas) would prefer the United States adopt a civil law system, their proper route is clear: they will need to amend the Constitution.
6.28.2007 9:44am
ATRGeek:
magoo,

Again, it is quite clear from Article III that the "judicial power of the United States" would include all the traditional powers of the courts of Law and Equity. So, judicial remedies are not arising out of "thin air." They are arising out of the judicial power of the United States as vested in the federal courts.
6.28.2007 9:48am
Peter Young:
ATRGeek,

You posted while I was writing my own comment. We are at one on on this all round.

Peter
6.28.2007 9:56am
magoo (mail):
ATRGeek --

The judicial power of the United States, and traditional powers of law and equity, do not include authority to create new "constitutional" remedies without authorization in the constitutional text. The founders expressly provided a monetary remedy for takings: just compensation. They did not provide for a monetary remedy for "retaliation." If you want one, amend.
6.28.2007 10:04am
wm13:
Why would damages be a generally effective or advisable remedy for government violations of the Constitution? The government officials at fault don't pay the damages; it comes out of the taxpayers' pockets. I can think of plenty of remedies that would deter violations of the Constitution a lot better, e.g., criminal contempt sentences for officials who violate the Constitution, ordering officials to make public apologies, etc., but not damages.

Damages do supply a rather lucrative living for lawyers, if that is the goal.
6.28.2007 10:19am
Xanthippas (mail) (www):
In many cases, an injunction or invalidation of a statute will actually constrain the political branches more than damage payments do.

I agree completely. As anyone who's taken a course in Remedies (as I recently did) can tell you, damages are sometimes the least intrusive remedy. Damages are a most unpleasant remedy when the wrongdoer can't afford to pay, but the government can always afford to pay.

The institution of judicial review is necessary precisely because the legislative and executive branches will often be tempted to exceed constitutional limits on their authority.

Amen. This is the nature of our government, and for courts to relinquish their duty to remedy violations of the Constitution, then the very system is undermined.
6.28.2007 10:32am
Peter Young:
The judicial power of the United States, and traditional powers of law and equity, do not include authority to create new "constitutional" remedies without authorization in the constitutional text. The founders expressly provided a monetary remedy for takings: just compensation. They did not provide for a monetary remedy for "retaliation." If you want one, amend.

Where did the Founding Fathers provide for any remedy at all for violations of constitutional rights other than just compensation in the case of governmental takings of property? That a particular evil so moved them to provide a remedy for it is not a proposition that is readily translated into the general principle that rights are not remediable unless the Constitution itself so provides. Throughout the history of the common law--with which the Founding Fathers were familiar--it had been unquestioned that the violation of a right carries with it a judicial remedy. You would ignore centuries of common law tradition.

The courts have long approved injunctive relief in cases involving violations of constitutional rights that otherwise meet traditional requirements for equity relief. Where in the Constitution is such injunctive relief authorized? Nowhere.

What is it about a damages award for violation of constitutional rights that so irritates you? Injunctive relief often costs the fisc more than damages awards and it certainly is more intrusive than damages awards. There's nothing about a damages remedy as opposed to an injunctive or other equitable remedy that would render it unpalatable unless authorized by the Constitution itself.

Or is it your position that the courts simply are not free to fashion a remedy of any kind for violations of constitutional rights, that they need authorization in the Constitution before granting either an injunction or a damages award? If so, then we're back to you ignoring centuries of legal tradition with which the Founding Fathers were familiar. There is no evidence they intended to reject the traditional role of the courts in fashioning remedies for violations of rights. In fact, every indication is they they expected the courts to continue the common law and equity traditions except as explicitly modified by the Constitution or legislation.
6.28.2007 10:40am
nyclerk (mail):
ATR Geek,

Your argument proves too much. Article III extends the judicial power to cases arising under the lesser laws of the United States as well as the Constitution. Under your view then, the federal courts are free to create a private damages remedy for violations of a statute even when Congress explicitly chooses not to. But the courts aren't free to do that, and rightly so. And that's leaving aside judicially created damages for Treaty violations.
6.28.2007 10:43am
Just Dropping By (mail):
Surely Thomas and Scalia are correct in saying that it isn't the SC's prerogative to decide the limits of sovereign immunity.

Since the sovereign immunity of the U.S. government was largely invented by SCOTUS (with no support in the literal text of the Constitution and relying on foreign law no less!), I can't see how SCOTUS is unable to modify it or even abolish it. In Colorado, the state Supreme Court abolished the sovereign immunity of the state government decades ago so that the state is only immune to the extent that it enacts legislation limiting people's ability to sue. Evans v. Board of County Com'rs, 174 Colo. 97, 482 P.2d 968 (Colo. 1971). The Colorado state government has managed to survive.
6.28.2007 10:52am
magoo (mail):
If Bivens actions are consistent with the original understanding of Article III, why did it take the court until 1971 to recognize this? The long delay isn't dispositive, of course. But it should give the pro-Bivens crowd some pause. Were the justices in the 1800s too stupid to recognize this plain original understanding?
6.28.2007 10:56am
frankcross (mail):
Actually, nyclerk, courts have created private rights of action that establish private rights of action for statutory violations, such as the Securities Exchange Act. I'm not sure what you mean by "explicitly chose not to." There's no explicit choice not to authorize judicial damages for constitutional violations that I see.

The Constitution does not explicitly authorize injunctive enforcement either, so that's not an argument against damages.
6.28.2007 10:58am
ATRGeek:
magoo,

With all due respect, you do not appear to be familiar with the common law system. The remedy for actions at law is damages, and actions in equity would allow non-damages remedies such as injunctions. So, when Article III refers to constitutional cases in both law and equity, it is specifically implying that the remedy for constitutional claims could be either legal remedies (damages) or equitable remedies (injunctions and the like). Incidentally, I think part of the problem in this dsicussion is that all of this would have been incredibly obvious to the Framers.

As for the takings clause, that is actually part of the substantive rule, not a remedies provision. So, your just compensation is not a remedy for the wrong of taking your property for a public use, because it is not in fact wrong for the government to do that. Rather, your just compensation is something you have a right to get when the government exercises that power. A need for a remedy would arise only if the government refused to give you just compensation when they took your property, because only then would they have violated a right.

wm13,

There is no guarantee that the government will indemnify its employees, nor should it when they willfully violate constitutional rights.

nyclerk,

Again, with all due respect you seem to be unaware of how the common law deals with statutory causes of action. Under our common law system it is, of course, fine for a statute to both create a cause of action and to then limit the available remedies. So, if the court holds that Congress explicitly chose not to provide a damages remedy along with the relevant cause of action, then it would be proper for the court not to award damages.

Again, though, the Constitution is quite clear on this: it contemplates actions in both law and equity for constitutional claims. Hence, it would be absurd to conclude that the Constitution explicitly bars legal remedies (damages) in constitutional cases.
6.28.2007 11:09am
Justin (mail):
Frankcross makes a point that reminds me of a limitation of Somin's Marbury argument. In relevant part:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. . . . So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."

Although I'm sympathetic to the concept of a judicially-created remedy, nothing in Marbury obligates or even promotes it. Marbury was decided by the court NOT exercising a power that conflicted with the Constitution, not enforcing any power of its own.
6.28.2007 11:14am
ATRGeek:
magoo,

Actually, Bivens noted the issue of damages for Fourth Amendment violations was reserved in the 1946 case Bell v. Hood. Bell in turn noted (without deciding the issue) that damages had been the remedy in Wiley v. Sinkler (1900) and Swafford v. Templeton (1902), two right to vote cases brought under the Constitution. So, actually, this principle is not as recent as 1971.

Of course, one might note that often damages will not be the plaintiffs preferred remedy, and rather that they might seek something like injuctive relief (an equitable remedy). So, the relative scarcity of damages actions in constitutional cases is not all that surprising.
6.28.2007 11:21am
Oren (mail):

If Bivens actions are consistent with the original understanding of Article III, why did it take the court until 1971 to recognize this? The long delay isn't dispositive, of course. But it should give the pro-Bivens crowd some pause. Were the justices in the 1800s too stupid to recognize this plain original understanding?


The evolution of constitutional law is driven by the policy choices of the day. In the 1800s there was no war on drugs and a vastly less powerful government apparatus. It's no surprise that Bivens came when it did.
6.28.2007 11:28am
wm13:
ATRGeek, I agree that damage awards against individual government officials not reimbursed by the state would be an effective deterrent against violations of the Constitution. I can't recall a single case where such damages were imposed, but maybe you can.
6.28.2007 11:28am
nyclerk (mail):
ATR Geek,

I don't see where you're getting that "Cases, in Law or Equity" means that Constitutional cases can necessarily be brought in law. Article III is granting jurisdiction over both equity and law actions, not saying that every category of cases it lists automatically provides for both types of actions. If you're arguing that its implicit in the common law system that remedies can be created where not explicitly foreclosed, fine. But you can't get that from Article III. The Constitution is silent on that issue.
6.28.2007 11:40am
ATRGeek:
wm13,

I have heard that can happen where the official is under criminal investigation for the same conduct. But I can't claim to have an encyclopedic knowledge of this area.
6.28.2007 11:43am
ATRGeek:
wm13,

Well, a little research can be interesting. To give an example, 28 CFR 50.15 covers indemnity for DOJ employees, and 50.15(c)(1) provides:

"The Department of Justice may indemnify the defendant Department of Justice employee for any verdict, judgment, or other monetary award which is rendered against such employee, provided that the conduct giving rise to the verdict, judgment, or award was taken within the scope of employment and that such indemnification is in the interest of the United States, as determined by the Attorney General or his designee."

So, there is definitely no guarantee of indemnity (I have no idea what happens in practice).
6.28.2007 11:52am
PubliusFL:
Ilya wrote: "However, I don't see why a damage remedy is inherently more 'activist' or more intrusive on the powers of the political branches than alternative remedies such as injunctive relief or facial invalidation of a statute."

Justin said: "Although I'm sympathetic to the concept of a judicially-created remedy, nothing in Marbury obligates or even promotes it. Marbury was decided by the court NOT exercising a power that conflicted with the Constitution, not enforcing any power of its own."

There you go. "Invalidation" is nothing more than declining to apply an inferior law in the process of applying a conflicting superior law. As Marbury v. Madison explained, that is "of the very essence of judicial duty," and is inherently less activist than fashioning a remedy which is not contained in the law one is trying to enforce. Which is not to say that monetary damages in constitutional cases are illegitimate (I'm undecided), but there IS a difference.
6.28.2007 12:05pm
Mark Field (mail):

Where did the Founding Fathers provide for any remedy at all for violations of constitutional rights other than just compensation in the case of governmental takings of property?


There's a very good reason the compensation clause appears in the Constitution: English practice at the time did NOT allow compensation in such cases. Thus, the provision was necessary to overrule existing common law practice. IIRC, only two states -- VT and MA -- had compensation provisions in their state constitutions.

In contrast, the recognized remedy at the time for an improper search and seizure was a private damages action. The officer (usually the sheriff) was personally responsible.

I agree entirely with ATR and Peter Young here.
6.28.2007 12:46pm
ATRGeek:
PubliusFL,

I agree there is a difference between deciding the law and determing a remedy. But now consider a case where the claimant is seeking an injunction to stop an ongoing deprivation of constitutional rights (eg, an injunction directing the FBI to stop coming by my house and removing the sign that I have put on my lawn because that is a violation of my First Amendment rights). Would issuing such an injunction be a legitimate exercise of the judicial power of the United States?
6.28.2007 12:48pm
Justin (mail):
ATRGeek, I think the answer to that question is yes, but I don't think Marbury by itself gets you there.
6.28.2007 12:57pm
ATRGeek:
nyclerk,

Hopefully we can agree that the language of Article III Section 2 is very clear to the extent that constitutional cases must arise either in law or equity, because if they arose in neither than it would be nonsensical to include them on the list at all.

So, your argument appears to be that constitutional cases arise only in equity, but not in law. But where are you getting that notion? Indeed, why shouldn't all these same considerations about unenumerated remedies apply to equitable remedies as well as legal remedies? But if you strike out both unenumerated legal and equitable remedies, you are right back to Article III Section 2 making no sense.

So, in the absence of some indication that either legal remedies or equitable remedies are barred in constitutional cases, the only sensible reading of Article III Section 2 is that both are available. And of course that makes perfect sense: the power to craft remedies is an ordinary judicial power in the common law system, so it would be natural for the Framers to assume that they had clearly granted that power to the federal courts in Article III as written.

Incidentally, I want to emphasize once more that it doesn't have to be this way. For example, you can set up special constitutional courts which have limited jurisdiction and limited remedies, and that is exactly what many civil law countries do. But the Framers decided instead to lump the jurisdiction for constitutional cases in with the jurisdiction for all other federal cases, and to do so within a broad grant of all the judicial power of the United States to the federal courts, explicitly including both the powers of courts of law and the powers of courts of equity.

So, with all due respect, what they did in Article III is very, very clear. It is those who want to read these unwritten limitations into the federal courts' exercise of judicial power in constitutional cases (like that somehow the federal courts have no power to provide legal remedies in constitutional cases) that are injecting new content into the Constitution.
6.28.2007 1:10pm
ATRGeek:
Justin,

I agree--Marbury is not a remedies case. And for that matter, Bivens is not a legislative review case.

But I, at least, am not citing Marbury for my views. I am citing Article III of the Constitution.
6.28.2007 1:12pm
Thales (mail) (www):
There's a very good article by Richard Posner in the I think 1981 Supreme Court Review called Rethinking the Fourth Amendment. There's a good discussion of damages remedies for violations of it and other constitutional provisions. Among other things he thinks that qualified immunity for state officials is fine but that such immunity should not be imputed to the government itself, under the standard (and very ancient) tort doctrine of respondeat superior. Only if the government has to pay the true and full cost of rights violations will there be optimal deterrence of them (the government can seek indemnification, if appropriate, from its own officers who committed the violations).

More broadly, the debate here is between people who think the federal courts are "civil law courts in a common law system" as Scalia's subtitle and one broad school of conservative legal thought has it, or whether they have some standard common law powers, including filling gaps in statutes and fashioning remedies, including for statutory rights. The general historical background is that common law courts in England evolved as an institution before there were written constitutions, and always had such powers. With our own federal constitution of course, we have written establishment of the courts' powers. But the text of Article III is not so plain and simple in what it empowers and what it forecloses as some would like us to believe (seriously, read it--it needs interpretation). Bivens, and before it the federal common law of Rule 10b-5, came out of an era where the remedial powers of federal courts were construed broadly. I think neither side is obviously and simply right. I will say that Holmes recognized a long time ago that a legal right with no accompanying remedy in court is an utterly meaningless waste of words, or an empty shell if you prefer a metaphor. Why it should be the case that we prefer a system of hollow, precatory rights is not obvious to me.
6.28.2007 1:26pm
ATRGeek:
Thales,

Every text needs some interpretation. I just don't see how one can reasonably interpret the text of Article III as not providing the federal courts with the powers of both courts of law and courts of equity, including in constitutional cases. And then all we need is a little history to know that if the federal courts have the powers of courts of law, they have the power to order damages as a remedy.

So yes, that is an interpretative argument. But it is an argument squarely grounded in the text and history. And I honestly believe that to reach another result, one has to abandon text and history and start fresh with a political theory.
6.28.2007 1:57pm
Justin (mail):
ATR, sorry, I thought you were responding to me. I cited Marbury just to counter Ilya's attempt to apply that case to his argument. I'm (somewhat) sympathetic to his argument, but I can't embrace it - it goes too far. And to cite Marbury (a case that does not go far enough as a general principle) as positive support is clearly insufficient in my view.
6.28.2007 2:20pm
Keyes:
wm13 said:

Why would damages be a generally effective or advisable remedy for government violations of the Constitution? The government officials at fault don't pay the damages; it comes out of the taxpayers' pockets. . . .

Damages do supply a rather lucrative living for lawyers, if that is the goal.


Respectfully, wm13's rhetoric about civil rights litigation is way off the mark.

First, absent insurance or indemnification, the state taxpayers never will pay money damages for a constitutional violation by a state agent. Municipalities also will not pay money damages unless the violation was (i) committed by a "decision-maker" -- and a line agent or police officer is not a "decisionmaker" -- or (ii) the product of a policy or custom of the municipality, a fairly demanding standard, or (iii) there's insurance or indemnity.

Second, lawyers hesitate to take on civil-rights violations for precisely the reasons I just outlined. Qualified immunity -- which in 4th Amendment cases, tracks the Leon case -- is a difficult hurdle in all but the most obvious constitutional violations. (An example would be intentional racial discrimination in job decisions.)

If you get past summary judgment, and the employing government is liable (via insurance, indemnification, or because of a policy), then damages is the issue -- of which the plaintiff's lawyer will get generally anywhere from 33-45%.

What are the damages, in a jury's mind, for the police -- in a Bivins' situation -- wrongly kicking down the door? And that's assuming none of the many good-faith justifications apply? Short of death or serious physical injury, I'm not sure damages are much more than a warm bucket of spit and a new door.

Civil rights lawyers are hardly getting rich off of Bivins or 1983 cases. Since the Burger Court began, these types of claims -- particularly in the 4th A realm -- have been substantially scaled back.

I'd be curious as to wm13's view -- and the view of others -- about the very existence of a "qualified immmunity" defense, particularly in 1983 cases.

The statute, 42 USC 1983, says nothing about qualified immunity.

Bivins, obviously, is a judicially created federal counterpart to the 1983, which applies only to state actors (not states, though) and municipalities.
6.28.2007 2:26pm
Gideon Kanner (mail):
"The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution."

Oh really? Care to reconcile that statement with San Remo Hotel v. San Francisco?
6.28.2007 2:51pm
Gideon Kanner (mail):
"There's a very good reason the compensation clause appears in the Constitution: English practice at the time did NOT allow compensation in such cases."

Au contraire. See the case of King's Prerogative in Saltpeter (1660). Agents of the crown entered private land and removed quantities of saltpeter for gunpowder manufacture. Held: since this was an act in furtherance of defense of the realm, there was no tort liability for the trespass. But the crown had to pay for the taken saltpeter. This principle goes back to the Magna Carta which establishes the royal duty to pay for what the crown had taken.

Moreover, historically, most British takings (for canals, turnpikes and railroads) were done by private companies operating under parliamentary charters granting them the power of compulsory purchase (what we call eminent domaion). Thus the title transfer may have been compulsory, but it was still a purchase with a purchase price being required.
6.28.2007 3:23pm
Laura S. (www):
I think you're missing something. Scalia does not appear opposed to statutory damages. The risk here seems clear, the court is arrogating itself the power of the purse. All monetary payments by the government must be rooted in statute. Note: this is distinct from restitution of improperly seized property.

Take for instance, what's happened in NJ: There is a State Constitutional right to education. The Supreme Court of NJ has decided to enforce this right by compelling specific monetary expenditures from the legislature. This is a scary breakdown of the separation of powers doctrine.

This also highlights the trouble with positive rights or requirements in Constitutions. e.g., if the constitution commands a budget by a certain date, what is the remedy or consequence available to enforce that date? None. It is and ought to be a political question.
6.28.2007 3:59pm
Thales (mail) (www):
"I think you're missing something. Scalia does not appear opposed to statutory damages. The risk here seems clear, the court is arrogating itself the power of the purse. All monetary payments by the government must be rooted in statute. Note: this is distinct from restitution of improperly seized property."

Why must all monetary payments by the government be rooted in statute--surely you think there is *some* scope for courts in fashioning a remedy that is not explicitly spelled out by the legislature? What about an executive order disbursing some funds pursuant to an implied power of the president (one not in violation of a statute)?

And to answer ATRGeek, I agree that you (and I share your views) have a better interpretation of Article III powers in light of text and extratextual sources. I was trying to illustrate that the other side seems to act as if they have a knockdown, obvious to all but the most stupid position. They don't.
6.28.2007 4:27pm
ATRGeek:
Laura S.,

I think you are confounding some very different things.

First, we are talking here about the government officers being liable for damages, not the government itself. If the government wants to go ahead and indemnify those officers, that is the government's decision (and see the CFR regulation I posted above). Of course, some would argue that the claimant could also sue the government under a respondeat superior theory, but that is a distinct issue from whether damages should be available at all.

Second, you seem to be unnecessarily conflating legal remedies with government expenditures in general. For example, suppose a common law court ordered a government entity to pay damages for breach of contract. Would you really say that is exercising the "power of the purse"? That is all that is going on here, except it is a tort case and not a contract case.

Finally, one needs to be careful about discussing court cases in other jurisdictions. Not only do different countries operate under different constitutions and different legal systems, but so in fact do different states. So, for example, I don't know if that NJ case is "a scary breakdown of the separation of powers doctrine." That is because I don't know the NJ constitution, and it may well have a different separation of powers in it than the federal constitution.
6.28.2007 4:34pm
wm13:
ATR Geek, Keyes, I think you are being a little disingenuous: indemnification of employees by government entities is the rule, not the exception. So not let's act as if damages awards for Constitutional violations were coming from the pockets of policemen who kick down doors, or attorneys general who burn up little children, or whatever; they are coming from my pockets. That being the case, I don't see why such damages are the best, or even a good, method of protecting Constitutional rights. I expect public shaming rituals--at which, I know, the modern mind recoils in horror, although they were certainly used at common law--would be more effective.
6.28.2007 7:29pm
ATRGeek:
wm13,

I'm not actually arguing that damages are the best method protecting constitutional rights (my point has just been that Article III clearly authorizes legal remedies in constitutional cases, but it also authorizes equitable remedies). That said, I'm not sure it is true that indemnification is actually the rule in practice, which is not a suggestion that I know differently, but just that I don't actually know.
6.28.2007 7:59pm
Kazinski:
The real weakness to the argument that the court can create a remedy out of thin air, is that it forcloses the legislature from fashioning its own remedy. Take Bivens, say Congress passed legislation making such violations of constitutional rights a felony punishable by 10 years in prison. Then what controls, the statute, or Bivens, or both? If that were the case then I'd think most courts would say the statute controls. Now say congress makes a $10 civil penalty for Bivens' like conduct, and specifically excludes it as a cause of action in the courts, does the impose its view? Will the court only impose its view when it thinks the legislativly imposed penalty is insufficient?
6.28.2007 8:39pm
Bill Dyer (mail) (www):
The whole point of judicial restraint is being able to say, "Wow, this is hard for me to resist, because I'm so sure it would be a great idea for the legislature to ___."

"Congress has refused to act on this matter that we judges think is really crucial" — if that is the standard, then that's no standard at all, that's an unfettered license for judicial legislating.

I agree that the Constitution is important, and that protecting constitutional rights is important, and that remedying their violation by a variety of means, including injunctions, declaratory judgments, and sometimes money damages, may be appropriate. If I were a Congressman, I'd vote for that.

If I were a federal judge, I'd remind myself that there's not supposed to be that kind of federal common law, that I'm sitting on a court of limited jurisdiction, that that my thinking something is "really, really a good idea" doesn't give me the right to make it into law from the bench — much less the resources to fully debate it, make fine policy adjustments, allocate costs, coordinate it within government agencies and with other legislation, etc.
6.28.2007 9:44pm
ATRGeek:
Kazinski,

Again, generally, the common law has long dealt with these sorts of questions (and by long, I mean well before the Framers wrote our Constitution). Generally, statutes can replace common law actions with statutory actions, but in constitutional cases those statutes would have to provide a sufficient remedy (otherwise they would become part of the violation).

Your first case is actually quite easy, because it involves a criminal statute and not a civil statute. In other words, the government could bring a criminal prosecution under the statute you described, and the victim could bring a civil action under Bivens. This, of course, happens all the time with crimes (ie, often they are also torts, and the victims can sue). So, you are wrong: the clear answer is not "the statute", but rather "both".

The second case is a little less clear because I am not quite sure what you are suggesting. But if I understand you correctly, you appear to be suggesting the statute would provide that the only remedy for any alleged constitutional violation would be a $10 damages payment. If that is correct, I am confident a court would hold that law was unconstitutional because it protected, not remedied, constitutional violations.

For example, suppose the government took your car away from you to use in the government motor pool and provided you with no compensation. It would seem that under this proposed statute you could only get $10 in damages for this violation of the Takings Clause. I am quite confident that a court would hold that this damages limitation itself violated the Takings Clause, and it would invalidate the law.

But again, it is quite possible for Congress to replace common law actions with constitutionally-valid statutory actions. In fact, they did so for state officials in 42 USC 1983. Of course, in 1983 they just did what Article III did, which is provide broad jurisdiction, including in both law and equity, which lets the courts fashion remedies:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...."

This, of course, makes some sense with such a broad statute, because it would make little sense to try to specify in advance the remedies for such a broad range of possible wrongs. And that is clearly exactly what the Framers did in Article III as well, undoubtedly for equally sound reasons.
6.29.2007 9:01am
ATRGeek:
Bill Dyer,

Again, what you are suggesting about the limits of the federal courts' jurisdiction is directly contradicted by the jurisdictional grant in Article III, Section 2, of the U.S. Constitution.

So, it would be fine to remind yourself that you were presiding over a court of limited jurisdiction. But it would not be fine to then proclaim that you do not have jurisdiction in both law and equity over constitutional cases, because Article III says that you do.
6.29.2007 9:06am
ATRGeek for Attorney General:
Bravo ATRGeek! On a lighter note, I would like to add that I find it tragically comical when Thomas and/or Scalia cite their own drafted opinions, and then include in that cite a quote from that cite, and the very fact that they were the very same ones who drafted it. Is that the very definition of circular reasoning?
7.1.2007 6:45pm