By: Edward A. Hartnett*
Abstract
The Supreme Court currently faces two very different kinds of criticism. One contends that the Court is not doing enough to remedy violations of the Constitution and asks the Court to adopt a more robust set of such remedies, claiming that the Constitution itself requires more remedies than the Court is currently providing. From this perspective, a decision refusing to enjoin the enforcement of an unconstitutional statute is equivalent to nullification. A second seeks to reform the Court, either to change its membership and thereby its interpretation of the Constitution, or to disempower the Court. Expanding the Court’s membership and removing its jurisdiction are among the reforms suggested.
This article takes a different approach, neither pleading with the Court to enforce the Constitution more vigorously nor calling for the Court to be reformed. It contrasts the promise and the reality of Marbury: while Marbury states that a remedy is required for the violation of every legal right, Marbury himself obtained no remedy. It discusses a wide range of remedies that are not constitutionally required as well as a small number of remedies that are constitutionally required. It discusses potential criticisms, including arguments that existing doctrine limiting remedies is wrong, arguments that it is wrong to analyze remedies separately from each other, and arguments that it is wrong to conceive of constitutional remedies separately from constitutional rights. Finally, it suggests various ways in which legislatures can calibrate constitutional remedies.
This analysis highlights the importance of democratic action by legislatures, especially by Congress, in safeguarding our rights and making them real. The ability of Congress to calibrate the enforcement of constitutional rights is an important tool for implementing its view of the Constitution.
* Richard J. Hughes Professor of Constitutional and Public Law and Service, Seton Hall University School of Law. This article grows out of a seminar I taught at New York University School of Law. I thank the students in that seminar for helping me to refine my thinking about constitutionally required remedies.