Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of the Supreme Court’s Constitutional Remedies Jurisprudence
By Gary S. Gildin.
The legal system’s willingness to award a viable remedy to persons harmed by the government’s invasion of individual liberty is a vital component of any regime of constitutional protection. English common law, international human rights instruments, and the seminal decision of the United States Supreme Court establishing the power of judicial review concur that victims of official misconduct must have recourse to effective relief if limits on governmental power are to be meaningful. It is essential that money damages to compensate the citizen for injuries suffered as a result of a constitutional violation be available. For a person harmed by unconstitutional action that is not likely to recur to that individual—such as police misconduct—injunctive relief may be meaningless, if even procurable. Particularly if the successful plaintiff may not recover attorney’s fees, absent a damage remedy, victims of governmental wrongdoing will have neither the incentive nor the means to file a civil action to redress the deprivation of their constitutional rights. As a consequence, government officials may freely ignore constitutional constraints without formal legal consequence.
Despite the critical importance of remedies to the litigant and to the overall efficacy of a constitution in restraining the misuse of governmental authority, judicial prescription of when and from whom damages are recoverable historically emerges as a second-generation development. In the initial era of constitutionalism, courts are fully occupied by the process of defining the substantive scope of constitutional rights. Only after marshalling a sufficient jurisprudence of rights do courts tackle the appropriate remedy for losses caused by violation of those rights.