The Constitution spells out some of our most cherished rights but says almost nothing about how those rights are to be enforced. It provides, for example, that “Congress shall make no law . . . abridging the freedom of speech,” but says nothing about what happens if Congress does. It declares that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” But what if that right is violated?

The answer, it turns out, has changed over time. The featured article, divided into four parts and titled The Path of the Constitution, discusses some of these changes and their implications. The first part explains how constitutional rights used to be enforced by courts. In the eighteenth and nineteenth centuries, there were basically two ways. The first – raising the constitutional right as a legal defense against a lawsuit or a prosecution – is familiar today. If the government tries to prosecute you under an unconstitutional law, you point out the law is unconstitutional and that should end the matter. This is how Robert Stevens avoided thirty-seven months in prison for selling videos depicting animal cruelty:  when prosecuted, he successfully argued that what he was doing was protected by the First Amendment. It’s also how the members of the Westboro Baptist Church avoided civil liability when they picketed a funeral and were subsequently sued:  when sued, they successfully argued that their protest was protected by the First Amendment. The second way was to use a common law cause of action. A simple example: if an officer was unreasonably searching your home, you could sue him for trespass (a common law cause of action), and he would have no defense against the lawsuit. He couldn’t say “it’s my job” or “I’m allowed to search” because the Constitution forbids unreasonable searches. Accordingly, he would have no defense to the lawsuit brought against him and would thus be subject to civil liability. It could be harsh for officers who made honest mistakes (and the article points out examples of this), but that’s the way it was. In this system, the enforcement of constitutional rights – and, as a corollary, enforcing the limits that the Constitution imposes on the government – relied heavily on common law causes of action.

In Part II, the article describes how several factors disrupted the use of common law remedies as a mechanism for enforcing the provisions of the Constitution. For one, there was a trend towards affording officers immunity from damages that would otherwise flow from lawsuits. Second, and independent of officer immunity, the prospect of actual monetary recovery diminished. Third, new technologies, such as telephones and wiretapping, implicated constitutional rights that did not give rise to common law causes of action (and therefore remedies) at common law. These factors combined to create the sense (among scholars and jurists) that the common law system of remedies was no longer in fact providing remedies for constitutional wrongs.

In light of the history outlined in Parts I and II, Part III reexamines three of the most controversial Supreme Court decisions regarding the adjudication of civil liberties – Mapp v. Ohio (incorporating the exclusionary rule); Monroe v. Pape (extending the Section 1983 cause of action); and Bivens v. Six Unknown Named Agents of Federal Narcotics Bureau (implying a cause of action under the Fourth Amendment) – to demonstrate how the path of common law remedies most visibly affected the Court’s jurisprudence. Looking at these cases through the lens of common law remedies yields surprising and interesting insights, which Part III discusses in depth. For example, Fourth Amendment scholarship generally assumes the exclusionary rule was a judge-made doctrine born in Boyd v. United States and Weeks v. United States. To the contrary, as the article describes, the exclusionary rule finds its origin in an age-old property remedy: if someone unlawfully takes your property, you can sue to get it back. The article traces the doctrinal history of the exclusionary rule from a principle of property to the exclusionary rule we know and recognize today.

The broader ambition of this article is to encourage a more precise debate, one that is more responsive to the issues faced by the Court when it decided these cases. It seems that one’s position on these controversial cases should be tied to a more coherent view of the relationship between the Constitution and the common law. Part IV provides four possible options for how to think about this relationship. The first option is to understand constitutional rights as completely independent from common law remedies. If those remedies dwindle in scope or availability, and if constitutional rights deflate as a result, then so be it – that is a problem for the political system, not the federal judiciary. For those unwilling to incur deflation of constitutional rights, there are essentially three other options. The second is to adapt – to interpret and recalibrate rights in order to preserve them in the face of otherwise eroding remedies. For example, in Katz v. United States, the Court overruled its precedent in Olmstead v. United States and extended the Fourth Amendment to protect against warrantless wiretapping because, in part, no common law cause of action existed for the then-novel problem of wiretapping. The third is to require a baseline of specific common law remedies and to have the judiciary ensure their availability. This approach would require having a due process right to the common law remedies that were available in 1791 and 1868. The fourth is to leave the entire question of remedies to Congress and the states, thereby accepting a diversity of approaches while monitoring to ensure the remedies provided are constitutionally adequate. While the article does not address the normative question of which option is best, it provides these options as a useful and unexamined methodological starting point for how to handle the Constitution’s relationship with the common law.

Posted in Academic Round-up, Featured

Recommended Citation: Sina Kian, Scholarship highlight: The Constitution and common law remedies, SCOTUSblog (Jul. 25, 2012, 1:09 PM), http://www.scotusblog.com/2012/07/scholarship-highlight-the-constitution-and-common-law-remedies/