The Path of the Constitution: The Original System of Remedies, How It Changed, and How the Court Responded

Abstract:     
This Article explores how the path of the common law shaped some of the Supreme Court’s most important decisions regarding constitutional remedies. The Article first introduces the original system of common law remedies for constitutional rights. It then explains how these remedies atrophied, both doctrinally and pragmatically, thus posing deep problems for the constitutional rights that depended on them. The Article selects three cases - Mapp v. Ohio, Monroe v. Pape, and Bivens v. Six Unknown Named Agents - to demonstrate how constitutional rights were shaped by concerns about those remedies. These cases have been debated many times over, but for all the debate, there is scarce attention paid to the problem the Court was addressing: the relationship between the Constitution and common law remedies and, more specifically, what to do about constitutional rights that depended on dwindling common law remedies. Indeed, this relationship hardly receives any attention in classrooms or scholarship today, yet it is at the core of the judiciary’s role in implementing the Constitution. This descriptive gap has distorted our normative debate about the relative merits of these cases. The last part of the Article suggests four potential methodologies for coherently managing this relationship.

Number of Pages in PDF File: 75

Accepted Paper Series