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Remedying the Loss of a Right

If somebody legally wrongs you—that is, not just wrongs you in a moral sense, but does something against the law, like takes your stuff, injuries you or your property, or even imprisons you without cause—what recourse do you have? It’s a pretty basic question, so basic we often forget about it. Of course, your instincts might tell you to retaliate or resort to “self-help,” injuring the wrongdoer or taking your stuff back, or something equivalent to your stuff as compensation. But as we all understand, we don’t live in a “state of nature” where this is our only option. Indeed, other than for immediate self-defense it’s generally not a legal option at all. Instead we have mediating institutions that do that work for us, most importantly the courts and the police.

And most of us would agree that these institutions should help regardless of whether the victim is of lowly station, rich and famous, or even politically powerful. Equality before the law means the law protects everyone against anyone.

The bargain of giving up on self-help and retaliation in exchange for the law providing a chance to be made whole is at the core of our system of government. Most famously identified by the English philosopher John Locke, it is embedded in American political theory. In fact, it’s fair to say our constitutional order does not make a lot of sense if you deny Lockean social contract theory—even if you think it’s actually a polite legal fiction. It’s so central that in addition to the rights we typically think about government protecting—life, liberty, and property—we also treasure an additional right that government provides—the right to a remedy.

But perhaps because it is so basic, so obvious, and so often not an issue, the right to a remedy is frequently overlooked. That has led to it being substantially underenforced, culminating in a recent decision of the United States Supreme Court that simply denied a remedy to the parents of a child who was killed by a federal agent. How did the Court fail to enforce such a basic right underlying our entire bargain of government? And how can we make the right better protected?

This essay explores those questions, but by no means answers them. Instead of detailing recent court decisions and political misdeeds—although I’ll do a bit of that—I’m going to look at where the right came from, how it’s been understood and enforced in the past, and what that experience can teach us about how it should be enforced today. And we’re going to especially examine one aspect of the right to a remedy, the right to a remedy when someone from the government—the institution we created to protect us in the first place—is the one who wrongs us.

We will start over 800 years ago in Norman England. Then we’ll examine the words of a couple English jurists that our own Founders took very seriously. After some discussion of the Founders themselves, we’ll look at how Americans obtained remedies in the early years of our Republic and how the Civil War changed that. Finally, we’ll end with why today the right to a remedy is under more of a threat than it’s ever been before, and how that might be because the Supreme Court has never explicitly recognized it. As I hope you agree, it’s now time for that to change.

Magna Carta

Like a lot of our legal system, this story starts with Magna Carta, the deal King John and his barons hashed out in 1215 in a field that is now about 10 minutes drive from London’s Heathrow Airport. Although the document is properly lauded today, and was given a full appreciation at its recent 800th anniversary, it’s important to keep in perspective. The original Magna Carta was a peace treaty that John—very arguably the worst King England has ever had (a field where there’s a lot of competition)—agreed to under extreme duress. Some of its terms protected people other than the barons themselves—free men and privileged widows—but much of it only applied to them. And, most importantly, as soon as John felt he had a bit more power, a mere 13 weeks after it began he successfully persuaded the Pope to annul the agreement. It was very much a document specific to its time and place.

Yet, its subsequent history has been boundless. As luck would have it, much of the Magna Carta of 1215 was readopted in the years following John’s death in 1216, and eventually put into statute by Parliament. From there it had a life not only in the courts of England but around the world.

A few pieces of Magna Carta are particularly relevant to the right to a remedy. One of them was only used in the original version. It provided the barons a remedy if the King were to violate the charter’s terms. But not just any remedy.

Article 61 allowed the barons to appoint a kind of committee of twenty-five of them who would keep their eye on the King to make sure he obeyed the charter. If he didn’t, they could “petition to have it redressed without delay.” And, if he then still didn’t give redress, the barons could “distrain and distress [the King] in all the ways in which they shall be able, by seizing [his] castles, lands, possessions, and in any other manner they can, till the grievance is redressed, according to their pleasure.”

Talk about self-help. Under this language—a remedy for which was never invoked in the few weeks it was “law”—there’s no need for a court. If enough barons think the King has wronged them, there’s first a “petition” (“petent” in the original Medieval Latin), and if the petition does not result in redress the barons can take matters into their own hands.

Unsurprisingly, this right—essentially a right to go back to the state of nature and mete out some justice—didn’t stick around. But another remedial protection did, one much more familiar to modern eyes. That was the guarantee, in Article 40 of 1215’s Magna Carta and Article 29 in the authoritative 1225 version, that “to none will [the King] sell, to none will [the King] deny, to none will [the King] delay right or justice.” This provision responded to King John’s habit of closing courts and literally selling legal claims. It was placed at the end of what’s now known as the Golden Passage, after the familiar guarantee of due process of law, or in Magna Carta’s words of not losing one’s life, liberty, or property but by the judgment of one’s peers or by the law of the land.

Coke-ing Up Remedies

For obvious reasons of textual pairing in the Golden Passage and their non-textual legal fit, the twin guarantees of due process and the bar on selling, denying, or delaying justice have long sat together in the legal imagination. And that was true of Magna Carta’s greatest champion, Lord Edward Coke (pronounced “Cook”), who said of Chapter 29 of the 1225 version, “upon this chapter, as out of a roote, many fruitful branches of the law of England have sprung.”

A towering figure in English legal history, Coke’s expositing of the Great Charter is why we view it the way we do today, whether he was correct about its meaning or not. Although the subject is heavily debated, there are strong arguments that the English didn’t think much about, or even do much with, Magna Carta before his time. But in a reaction against the seventeenth century Stuart Kings whom he rhetorically battled with—and whom many of his contemporaries later did real battle with in the English Civil War—Coke held up Magna Carta as the protector of English liberty against absolute monarchs and tyranny. He even once told Parliament “Magna Carta is such a fellow that he will have no sovereign.”

Coke’s Second Institutes, first published in 1642, a few years after his death, give his fullest consideration to the subject. Regarding the requirement that deprivations of life, liberty, or property be according to the “law of the land,” Coke said:

Now it may be demanded, if a man be taken, or committed to prison . . . against the law of the land, what remedy hath the party grieved? To this it is answered: first, that every act of parliament made against any injury, mischief, or grievance doth either expressly, or impliedly give a remedy to the party wronged, or grieved . . .

2. He [the person wronged] may cause him to be indicted . . .

3. He may have an habeas corpus out of the king’s bench or chancery . . .

4. He may have an action of false imprisonment . . .

5. He may have a writ de homine replegiando [retrieve a person out of prison or private custody] . . . [or]

6. . . . a writ de odio, et atia [a writ to inquire whether a person is imprisoned for hatred or ill will] . . .

Plainly, Coke thought that if the King were to deprive someone of liberty or property there were a medley of remedies at the subject’s disposal. Some of these existed because of affirmative acts Parliament had taken to protect against royal excesses, but some were also available through common law, such as the various writs he mentions.

What about the second part of the Golden Passage, regarding no sales, denials, and delays of right or justice? Coke turned out to be quite a fan of that too. Here’s his summary, which became so widely quoted it essentially turned into the received understanding in Anglo-American jurisprudence of that sentence from Coke’s time through today:

This is spoken in the person of the king, who in judgement of law, in all of his courts of justice is present, and repeating these words . . . And therefore, every subject of this realme, for injury done to him in bonis, terries, vel persona, [goods, lands, or person] by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the courte of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.

There’s a lot that we could “unpack” from that paragraph, but there are two simple observations to make here. First, the statement about the King being “in” all of “his” courts. That’s something easy to gloss over, but it’s very important to understanding how remedies evolved from Coke’s time to the United States’ founding. We’ll explore the implications of that in a moment. Second, Coke claims that “every subject” has access to the courts for any injury to his property or person “by any other subject.” The King himself, or the abstraction called “the Crown,” is, of course, not a “subject.” Thus, this provision itself does not guarantee the right to go to court to sue the Crown. Why is that? Well, a good explanation is that actions against the Crown were already delt with earlier in the Golden Passage, as we just saw. And, as we’ll see, “subject” really meant just about anyone other than the King himself, even those who worked for him.

Petitions

Coke’s understanding of the rights of Englishmen, as taken from Magna Carta, gives you a number of options if you’re injured. You can sue the offender in court, and the action must be heard without delay, with relief awarded if you prove your case. And, if the person injuring you is the Crown, and has taken your stuff or locked you up, you can file a number of actions or writs to get your stuff back or obtain your release. But what if “the Crown” itself hurt you in the past, and all that could be done now is award damages? That is, it’s not like the King’s constables took your horse and have it locked away, easily returnable to you. Instead, your injury was something like the constables beating you up, or damaging your merchandise. Can you then sue for an award of money?

Although Coke doesn’t seem to see the Golden Passage directly speaking to this, in actual fact this was a thing you could do, and something that got easier over time. It was through something called a “petition.” (Remember that from the “castle clause” of the original Magna Carta?) And it was nominally directed to the King, in one of “his” courts.

A peculiar (to contemporary American eyes) aspect of the English legal system is that the courts were under the King’s supervision. There was a separation of powers in England, but it was not Montesquieu’s tripartite powers that James Madison and his colleagues later erected. It was the separation between the Crown and Parliament, as that balance came to be tumultuously hammered out in the seventeenth century, via a civil war, temporary abolition of the monarchy, reestablishment, and final settlement in the Glorious Revolution of 1688. In that separation of two powers, the courts were within the King’s domain. England famously had a lot of courts—including the King’s Bench, Chancery, and Court of Common Pleas—and in their history some were more a part of the Crown than others. But by the time of Coke they all were essentially arms of the Crown. Parties sued—and even today still sue—other parties through asking the Crown to intervene and give them justice. This seems a bit odd in the case of an action against the Crown, because technically that means asking the King to stop the King from hurting you, or asking the King for damages because of an injury the King inflicted on you.

But that’s just it; a litigant is only technically petitioning the Crown. Yes, filings in court against the Crown were styled as “petitions.” Today, a “petition” sounds like a request for a favor, not something that the person being petitioned actually has to respond to. But in practice petitions were accepted by the courts like normal pleadings in any lawsuit, and judges allowed their ensuing cases as though the petitioner had a mandatory legal claim if the facts and the law afforded them relief. This evolved over the years, but as history came to the time of the American Revolution, there was an established process where those who had a valid claim against the Crown, either through an injury in tort or a breach of contract claim, could go to court and did not simply have to pray for the mercy of the monarch. Now, courts were often still reluctant to award damages when the Crown was a defendant, but that had less to do with the King avoiding responsibility than the separation of powers. As Parliament was the authority with the power to tax, the Crown’s courts were a bit reluctant to issue judgments spending that money. Nevertheless, processes existed for petitioning the Crown for justice and being awarded actual damages.

This is reflected in what the next great compiler of English law, William Blackstone, wrote just a few years before Americans enter this story in 1776.

The King Can do no Wrong—Too Bad if You Work for the King

Blackstone—who is perhaps more of a name today because he was a much clearer writer than Coke—was one of the giants, perhaps the giant, of English jurisprudence. His writing on this matter is now usually remembered for one thing: the maxim that “the king can do no wrong.” But that means much—much—less than it’s popularly given credit for. First, because he immediately qualified its reach, and, second, because he also made clear, and as was already clear under English law, that the maxim really just meant the King himself, not his agents.

All that maxim meant, explained Blackstone, was that the King “personally” “is not chargeable” of “whatever may be amiss in the conduct of public affairs.” So if King George III ordered something that one of his subjects thought injured his person or property, the subject couldn’t sue George by right. But Blackstone then goes on to explain that

though no action will lie against the sovereign, (for who shall command the king?) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it perfumes that to know of an injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king’s own name, his orders to his judges to do justice to the party aggrieved.

I.e., the King is such a good guy that he would never try and injure someone without cause, and therefore would want to redress that injury. Of course, this has little relation to the actual human who serves as the sovereign King or Queen, but that idealized view of “the Crown” here runs to his subjects’ benefit. Thus, “the King can do no wrong” is a good thing for his people because when there is wrong done it can’t be by him (good heavens no!) and therefore you can sue about it.

Whom do you sue? Blackstone provides a few mechanisms, most importantly the petition of right, one of the “petitions” we just discussed. Though not as exciting as barons laying siege to castles, and a much more conciliatory view of the King’s motivations, the result is the same. An action that forces the sovereign, by law, to remedy an injury.

But, again, generally it is not the sovereign himself who injures his subjects, but the various officials of his government. And Blackstone is careful to explain they can do wrong:

But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived, and induced to do a temporary injustice.

So, even though you can petition if the Crown itself arguably injures you, that’s a technicality you don’t often even need to worry about. Instead you can sue the specific policeman or customs agent who did the offending act. Sue him for trespass personally. If that agent has done wrong he has, by definition, “deceived” the King. Plus, perhaps the Crown needs Parliament to help him spend money, but forcing a customs agent to cough up doesn’t affect the public fisc.

Coming to America

The understandings of a right to access the courts to remedy a wrong, and, more specifically, a right to be made whole by one’s own government and its agents when it or they have wronged a private person, were no less transferrable to the United States than the many other “rights of Englishmen” that the nation’s Founders are famous for revering. When states began writing their own constitutions during and shortly after the Revolutionary War, most included a version of the Golden Passage’s law of the land language, and a number also included the last sentence’s guarantee of right and justice. Further, before the U.S. Constitution came into being, seven states included a right to petition, although all stated the right as one to petition the “legislature.” This changed, however, with the Constitution and what we now call its Bill of Rights.

The Constitution established a true separation of powers for three branches of government. No more were the courts considered an arm of the executive. But the courts were also left a bit ambiguous, with “one Supreme Court” and “such inferior courts as the Congress may from time to time ordain and establish.” And what you could sue about in such inferior courts, or even on appeal from a state court to the Supreme Court, was pretty limited. Article III of the Constitution allowed for suits arising under the Constitution and federal laws, those involving the U.S. government, and those between citizens of different states, but none of this included the great mass of litigation that then existed (and still exists) in the several states under state common law and state statute.

In line with the inclusion in early state constitutions, when the First Congress drafted the Bill of Rights there was a push by some to include a right to a remedy along the lines of the last sentence of the Golden Passage. Among the many proposed amendments that several state ratifying conventions sent to Congress was one guaranteeing open courts and barriers to selling, denying, or delaying justice. (Three states sent them, although only Virginia’s was available to the First Congress when it drafted amendments in the summer of 1789; the two other states were the two delinquent states who only ratified the Constitution afterward—North Carolina and Rhode Island.) But the idea didn’t take off much in Congress, although the Senate did consider a motion (which failed) to add such a clause.

The reason for this is pretty clear. A broad right to a remedy primarily concerns suits between private parties, as Lord Coke implied. After all, at least when it comes to private litigation, the right to a remedy is a positive right. It’s something the government provides (through having a court system), not a protection from the government. That’s something Americans in the eighteenth century were fine with their states providing, but not the nascent federal government. Fulfilling that right might mean an expansion of federal courts and even Article III jurisdiction (for example, to allow for private lawsuits between citizens of the same state), or some other enforcement mechanism of the federal government. Thus, a general right to a remedy wasn’t included in the Bill of Rights, unlike the various negative rights (such as the right to free speech, religion, to be free from unreasonable searches, etc.), and procedural rights that you might call “positive rights” but that only kick in once the federal government is already doing something to you (the right to a jury trial, just compensation upon a taking, etc.).

The First Petition?

Except the Bill of Rights arguably did include kind of a right to a remedy, which now goes almost unnoticed. Most people today have a sense of how the First Amendment is written: “Congress shall make no law” and then something about religion, free speech, and other stuff. Many will remember that other stuff to include the press. But then there’s also the right to assemble. You hear about that one from time to time. And then at the very end there’s the Rodney Dangerfield of the First Amendment, “to petition the Government for a redress of grievances.”

Petition. Redress. Grievances. What does that all mean? It sounds a bit like the English petition of right, or even the petition of Article 61 of the original Magna Carta. More immediately, it sounds a lot like the petition clauses in the various state constitutions of the time. Except, again, before the First Amendment was drafted all of those state clauses solely mentioned the “legislature.” And that was how James Madison’s first draft of what we now call the First Amendment read too. But in the back-and-forth between the House and the Senate the language changed to encompass “the Government.”

Petitioning a legislature is pretty straightforward. To my knowledge, no one during the Founding era, nor today, thinks that means anything more than a right against some kind of punishment or retaliation for advocating to legislators for them to act in a certain way. There’s no “petition” that you might file with a legislature that means it must pass a bill for you, or some other public act, if you meet some kind of legal standard.

But the First Amendment says “the Government,” one of the few times that word is used on the Constitution. It thus seems to pretty deliberately encompass not just Congress but the other branches too, including the federal courts. This parallels what Blackstone said: private citizens can file various actions, including a petition of right, against the Crown or (especially) the King’s various officers when the government and its agents have wronged them. And that’s not just a right to file, but that the King’s courts do justice, i.e., provide a remedy in the case of actual injury. Some scholars, including James Pfander and Benjamin Cover, have convincingly argued (in my view) that the Petition Clause should be interpreted in the same way: Citizens have a right to sue the government, and win, when it has aggrieved them.

But this is not how the Supreme Court has interpreted the Petition Clause. Although it’s left room for the clause to have some independent application from the more familiar Free Speech Clause, it essentially has said the clause gives citizens a right to communicate to legislators, executive officials, and file actions in court, but that it simply prevents retaliation by the government for those actions, not a right for the court to rule in a certain way. That, of course, could already be covered (and usually is covered) by the Free Speech Clause, as any kind of “petition” will essentially mean speaking to the government.

Common Law for the Common Man

Even without this application of the Petition Clause, as a practical matter Americans for years after the Founding were able to sue the government (federal, state, and local) and its officials both for relief from ongoing harm (such as a writ of habeas corpus if wrongly detained, or replevin if one’s goods were unlawfully seized), and for damages. There was a great deal of controversy regarding whether “sovereign immunity,” the government’s supposed right to avoid suit (what Blackstone meant by “the king can do no wrong”), had been abrogated via the Constitution, and the Supreme Court decided in a very early case, Chisholm v. Georgia, that such an old world notion didn’t apply in the land of liberty (at least in federal court). That decision—allowing a suit against the State of Georgia by someone from outside the state in federal court—caused an outrage and led to the Eleventh Amendment. The Amendment’s text simply prohibits an unconsented suit against a state by someone outside of the state, but the Court has interpreted it broadly to mean sovereign immunity is very much a thing. Even with Chisholm, however, suits against public officials for damages under common law were frequent in the early Republic, and were filed against federal officials in state courts.

The fact that Americans lived under a written constitution, something that the English muddled along without, also raised a new question: Could a citizen sue a federal official, or the federal government itself, for damages for having violated the Constitution itself? For example, if Congress passed a law banning certain speech, could a censored speaker sue the U.S., or an agent enforcing the law, for damages related to that censorship? Perhaps surprisingly, this issue didn’t arise much for a long time. The reasons for that may have been, first, the federal government wasn’t very active, and, second, that any damages the feds might inflict on someone that would be of a Constitutional nature would likely be covered by common law already. For example, if a customs agent rustles through a warehouse without a warrant, damages can already be sought at common law—for trespass or burglary—without having to bring in the Fourth Amendment directly. The Constitution would arise as a defense, with the official arguing what he did was justified by law. But the harm itself was not a constitutional matter.

When the Fourteenth Amendment was adopted in the wake of the Civil War, however, the issue of a right to a remedy against the government became a much bigger deal. Whereas there were precious few rights citizens possessed that applied against states under the antebellum Constitution, now there were the capacious-sounding rights of the Thirteenth and Fourteenth Amendments. What remedy does a newly freed slave have when a local police officer denies him equal protection or due process of law, or (as the Fourteenth Amendment says but the Supreme Court quickly read out of existence in the Slaughterhouse Cases (1873)) denies him the Privileges or Immunities of citizens of the United States? Congress quickly answered this itself with Section 1 of the Ku Klux Klan Act of 1871, or what we today call Section 1983. It allows for legal and equitable actions (including for damages) against a “person” who denies someone his constitutional rights under color of state law. As interpreted, the Supreme Court has said that does not include states themselves, but does include state officials and local officials (and local governments, after a ruling in 1978).

Although various Supreme Court opinions somewhat neutralized Section 1983 for a long time after 1871, it nevertheless unambiguously allowed for a remedy of damages for violations of federal constitutional rights against state and local officials. Further, in 1875 Congress for the first time allowed for “federal question jurisdiction,” where people could sue in federal court over an issue of federal law. In some cases this was held to include violations of the Constitution, even when damages were involved. And these remedies were on top of whatever common law or other state remedies citizens might have.

If Section 1983 hadn’t been passed a separate question might have arisen: Was a right to a remedy against the government or a government official (a right at that point recognized in our English legal heritage for over 600 years), a “Privilege or Immunity of citizens of the United States” or inherent in “due process of law”? In other words, could a citizen sue for damages when their Fourteenth Amendment rights were violated, with that right to sue itself being a right the Fourteenth Amendment protects? (This issue has come up when it comes to suing states directly, but through the prism of sovereign immunity.) The right to sue could simply be an implied right under either clause (such as the right to raise one’s children, a right that the Supreme Court has said the Due Process Clause protects), or could be the First Amendment’s Petition Clause incorporated against the states. In any case, although it didn’t matter much then, that issue has now arisen in modern times as it’s become harder and harder to obtain right or justice.

Twentieth Century Foxes in the Henhouse

Today, the recognition of a federal constitutional right to sue the government matters more than ever before. How can this be with the long practice of suing federal officials in court and Section 1983? Well, there are a lot of answers to that. But I’m just going to highlight a couple here. For federal officials, it’s because of a change in how victims can sue. For state and local officials, it’s because of judicially created doctrines that protect government agents from the consequences of their actions (although, to be clear, these doctrines often apply to federal officials as well).

Again, since the Founding individuals whose rights were violated by federal officials could go to court and obtain damages. This often was done in state court under state common law, or in federal court, in diversity jurisdiction, through what used to be called “general common law.” But with the abandonment of the general common law in Erie Railroad v. Thompkins in 1938, there was no longer a unified standard for treating federal officials.

The Supreme Court saw the problem with this in a 1971 case called Bivens, and allowed for an “implied remedy” for a violation of the Fourth Amendment. Over the next few years, it also did so for the equal protection component of the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s bar on cruel and unusual punishment. In each instance, however, it didn’t simply say that there is a right to a remedy against the federal government under the U.S. Constitution, such as through the Petition Clause. This patchwork of protections then hit a snag under the more conservative Rehnquist and Roberts courts who refused to “find” other implied remedies and said that it was up to Congress to do that.

Meanwhile, Congress unfortunately only made things worse with the passage of the Westfall Act in 1988. After that you could no longer sue federal officials in state courts. As a result, if you had a constitutional injury and you wanted to hold a federal official accountable for inflicting it, you could no longer turn to state courts for help, and federal courts were growing increasingly weary of implying remedies directly under the Constitution. The ultimate manifestation of this development (so far) was the recent Supreme Court case I mentioned above, Hernandez v. Mesa, where a border patrol agent shot and killed a Mexican boy just across the border in Texas, and the Court said there was no implied remedy for the boy’s parents to obtain relief. The parents truly had no remedy for this obvious and shocking violation of the Constitution, and, because they also couldn’t turn to state courts for help, they were left with nothing.

Again, for most of the nation’s history this wasn’t true. People could go to court (often state or federal) and simply sue federal officials for damages. With Congress erecting barriers to this, however, only the Constitution was left. The Court’s failure to recognize American’s heritage of remedies going back to 1215 has meant that other than a few seemingly random protections found in Bivens and a couple follow-up cases, that right now depends on Congress’s grace. “The king can do no wrong” has come to mean much more than just George III.

For state and local officials the story isn’t quite as bad, but it’s still pretty bleak. The Supreme Court has recognized that Congress created a pretty expansive remedy with Section 1983, but has thrown other barriers in the way. The most important is called qualified immunity. The ins-and-outs of the doctrine are infuriating, but we don’t need to enumerate them all here. A sufficient summary is that not only does someone has to prove a government agent violated her rights, but that the right was “clearly established” that the agent’s actions would violate her rights. To prove this, an individual must show that the Supreme Court or the relevant court of appeals already issued an opinion with similar facts to provide the agent with “fair notice” that similar behavior would violate the Constitution. It doesn’t even matter if the agent acted in bad faith. So long as there is no precedent with nearly identical facts in your relevant jurisdiction, you’re generally out of luck. In practice this means that lots of unconstitutional behavior is found to nevertheless not be “clearly established” as unconstitutional, and that government agents—even those behaving in bad faith—get off the hook for paying damages to truly injured people. (Federal agents get to raise qualified immunity too, by the way, if the injured person is able to use Bivens.)

While qualified immunity is in theory a “qualified” elimination of a remedy, in practice it comes close to absolute and a major roadblock to vindication of constitutional rights. Thus, this raises the question of whether a right to a remedy against the government protected by the Fourteenth Amendment—either on its own or through the incorporation of a beefed-up Petition Clause—is being denied by the doctrine.

A Right to a Remedy Already

The Supreme Court hasn’t squarely addressed whether post-Bivens rulings or qualified immunity violates this understanding of the Petition Clause, or a right to a remedy against the government protected by the Fourteenth Amendment, and perhaps given its recent distaste for Bivens it’s a long way from doing so. But if it enforced a right to a remedy it would be in good keeping with over 800 years of law, a period much longer than many rights the Court has championed over the years. It also would be in keeping with the theory underlying our entire constitutional order, that citizens give up their right to self-help in exchange for the government sorting out who has hurt whom, including when the government itself is the wrongdoer. That doesn’t mean that we need to bring back the right to siege castles. But recognizing a right to obtain real relief in the government’s courts would go a long way to rectifying the recent rejection of the heritage King John’s barons, Coke, Blackstone, and many others bequeathed us.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.

 

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