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.