The Right-Remedy Gap in Constitutional Law

Article excerpt

Ever since John Marshall insisted that for every violation of a right, there must be a remedy,(1) American constitutionalists have decried the right-remedy gap in constitutional law. Everyone agrees that victims of constitutional violations should have effective redress. So when Akhil Amar declares that governments acting unconstitutionally "must in some way undo the violation by ensuring that victims are made whole,"(2) he voices a proposition commanding nearly universal assent. At least, as an ideal. When pressed, most of us recognize that the law of remedies is, in the words of Paul Gewirtz, inevitably "a jurisprudence of deficiency, of what is lost between declaring a right and implementing a remedy."(3) The distance between the ideal and the real means that there will always be some shortfall between the aspirations we call rights and the mechanisms we call remedies.

Recognizing that a right-remedy gap is probably inevitable in constitutional law and is in any event deeply embedded in current doctrine, some scholars have modulated the strict imperative of full remediation. Richard Fallon and Daniel Meltzer have recast Marbury v. Madison's "apparent promise of effective redress for all constitutional violations" as a "principle, not an ironclad rule," an ideal in practice "not always attained."(4) They rank this ideal below the "more absolute" requirement of "a general structure of constitutional remedies adequate to keep government within the bounds of law."(5)

This systemic reformulation of Chief Justice Marshall's maxim has important advantages over the original. It less plainly contradicts current law and more readily accommodates the familiar idea that Congress may substitute one remedy for another within some generally adequate scheme of constitutional enforcement.(6) Since no remedial scheme will be optimal for all plaintiffs, legislative power to provide one remedy and withhold another strongly implies that there will be situations where individual victims of constitutional violations do not receive effective redress.(7) Indeed, it may be that the only constitutionally mandatory, as distinct from normatively desirable, remedial scheme is the right of a target of government prosecution or enforcement to defend against that action on the ground that it violates the superior law of the Constitution.(8) Even for those willing to settle for something less, full individual remediation remains the ideal.(9) Deviations from that ideal are viewed with skepticism and regret. Unredressed constitutional violations may have to be tolerated, but they should not be embraced, approved, or allowed to proliferate. Moreover, full redress for individual victims of constitutional violations is not only desirable in itself; it is also the direct and obvious route to an adequate system of constitutional enforcement. Doctrines that curtail individual redress thus not only deny full remediation to some victims; they also call into question the adequacy of the overall structure of constitutional enforcement. Typically, therefore, constitutional law scholars insist on full individual remediation as a starting principle and strenuously contest exceptions. The result is an attitudinal presumption against any gap between tight and remedy in constitutional law.

In today's constitutional landscape, the largest, most lamented, and least defended gap between right and remedy involves money damages. Although 42 U.S.C. [sections] 1983 provides for damages actions against state and local officers who violate constitutional rights,(10) and Bivens creates a parallel claim against federal defendants,(11) the promise of monetary compensation for constitutional violations has not been fulfilled. On the contrary, current doctrine sharply curtails damages liability for constitutional violations, chiefly by requiting proof of fault (beyond the mere fact of a constitutional violation) by a government officer. Generally speaking, the kind of fault required is negligence with respect to illegality. …