Constitutional Remedies: A Reference Guide to the United States Constitution

By Michael L. Wells; Thomas A. Eaton | Go to book overview
Save to active project

Part III

Conclusion

In Marbury v. Madison (1803) Chief Justice John Marshall declared that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” When the injury consists of violation of the Constitution, the case for a remedy would seem to be especially strong, for constitutional rights are the most fundamental rights we possess. Yet there are significant obstacles to obtaining certain kinds of remedies for constitutional violations. No one contests the right of a person to raise the constitution as a defense to criminal or civil charges brought against him. But many constitutional violations take place outside the courtroom. Governments and their officials may commit constitutional wrongs in the course of daily operations, for example, by firing an employee on account of protected speech, or by using excessive force in making an arrest, or by denying medical care to a prisoner. If the Constitution were conceived solely as a “shield” against civil or criminal liability, it would be of little use in any of these situations. Many of the constitutional rights that have won recognition in the past fifty years could not be adequately enforced if the Constitution could only be asserted as a defense.

Instead, the aggrieved person must become a plaintiff and wield the Constitution as a “sword.” A central theme of this book is that the availability of a suitable remedy is considerably less certain when the holder of a right seeks to take the offensive side of the litigation, seeking damages or prospective relief against the violator. The Supreme Court has recognized that deterring constitutional violations and vindicating constitutional rights are compelling goals. In pursuit of these goals, it has recognized a wide array of constitutional remedies. At the same time, the Court takes the view that a variety of considerations may justify limiting the range of constitutional remedies. One obstacle is the ancient yet tenacious doctrine of sovereign immunity. Some of the difficulties relate to the choice of remedies.

-237-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
Constitutional Remedies: A Reference Guide to the United States Constitution
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 269

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?