suits to recover damages for physical or emotional harm sustained in the past are called “common law torts” (“torts” because these cases involve wrongs done to the plaintiff, typically in a noncontractual setting; “common law” because most of the law in the area is made by judges, and this is the term courts use to denote judge-made, as opposed to statutory or constitutional, law).

In focusing on remedial issues, this book differs in certain ways from most of the other volumes in this series. The law of constitutional remedies is not grounded in the constitutional text, for the Constitution contains very few remedial provisions. Two themes dominate the text of the United States Constitution. One is governmental structure. This is the central concern of the original document, ratified in 1788. Most of its provisions address the division of power between the national and state governments and among the legislative (article 1), executive (article 2), and judicial (article 3) branches of the national government. The second major constitutional theme is the relation between the state and the people. The main aim here is to guarantee citizens certain rights so as to thwart abuses of power. Though the original Constitution contains few individual rights, the omission was a source of concern to many citizens of the new nation and was quickly corrected. To this end, the Bill of Rights, enacted in 1791, and the Thirteenth, Fourteenth, and Fifteenth Amendments, ratified after the Civil War, set forth constitutional rights that limit the scope of governmental power over persons. For example, the First Amendment guarantees freedom of speech and religion; the Fourth Amendment restricts the power of government to search persons and property; the Eighth forbids cruel and unusual punishment; and the Fourteenth obliges states to accord everyone equal protection of the law and prevents states from depriving anyone of life, liberty, or property without due process of law. Nowhere in the document or the amendments does one find any effort to guarantee adequate remedies for violations of constitutional rights, apart from provisions in the post-Civil War amendments authorizing Congress to enact “appropriate legislation” to enforce them. The consequence of this lack of attention to remedies in the Constitution itself is that, as noted earlier, most offensive constitutional remedies have, at least superficially, a statutory or common law “pedigree.”

Another difference between this book and analyses of other constitutional topics is that the policy considerations bearing on what remedies should be available may be quite different from the matters of principle that determine the outcome of disputes over the scope of constitutional rights. Many leading constitutional theorists share the views of Peter Schuck. Addressing specifically the constitutional tort context, Schuck maintains that “rights and remedies are utterly different legal phenomena—products of distinct reasoning processes employing distinct sources, methodology, and decision criteria.” ¹ Ronald Dworkin argues that

the best interpretations of the most important rights-bearing clauses of the Constitution show these clauses to embody principles of political morality that are abstract in the sense that they require fresh moral judgment to apply to particular circumstances…[J]udges must

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