The Procedural Annihilation of Structural Rights

80 Pages Posted: 5 Jul 2009 Last revised: 17 Aug 2009

Date Written: July 3, 2009


For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.

Suggested Citation

Gey, Steven G., The Procedural Annihilation of Structural Rights (July 3, 2009). FSU College of Law, Public Law Research Paper No. 384. Available at SSRN: or

Steven G. Gey (Contact Author)

Florida State University ( email )

Tallahasse, FL 32306
United States
850-644-5467 (Phone)
850-644-5487 (Fax)

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