Constitutional Remedies as Constitutional Law

71 Pages Posted: 7 Oct 2020 Last revised: 8 Oct 2020

Multiple version iconThere are 2 versions of this paper

Date Written: August 1, 2020

Abstract

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the provisions of the counter-majoritarian Constitution. Absent judicial review, the fundamental speed bumps to tyranny which the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the remedies to be issued to enforce the judiciary’s interpretations of the Constitution are fully controlled by the very political branches which the Constitution is designed to restrain. Thus, all the political branches need do to avoid constitutional control is deny to the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet the respected constitutional scholars to have examined the issue of constitutional remedies seem not to have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope — indeed, the existences — of remedies to enforce constitutional dictates. Nor has the Supreme Court acknowledged the unique nature of constitutional remedies. Instead, the Court has incorrectly deemed implied constitutional and statutory remedies to be coterminous as a matter of judicial power, when the fundamental elements of American political theory make clear that the two are completely distinct.

In this Article, the author explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. He then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation.

Keywords: Constitutional Law, Remedies, Separation of Powers, Federal Jurisdiction, Democracy, Political Theory, Injuctions

Suggested Citation

Redish, Martin H., Constitutional Remedies as Constitutional Law (August 1, 2020). Northwestern Public Law Research Paper No. 20-23, Available at SSRN: https://ssrn.com/abstract=3668518 or http://dx.doi.org/10.2139/ssrn.3668518

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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