Constitutional Rights, Remedies, and Transsubstantivity

110 Virginia Law Review (2024 Forthcoming)

53 Pages Posted: 16 Mar 2023

Date Written: March 12, 2023


When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California indeed enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decisionmaking—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for discrete constitutional wrongs. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial nontranssubstantivity can be transparent, translucent, or opaque based on the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently non-transsubstantive, for instance, because they apply differently to discrete referents on their faces. And indeterminate remedial standards (like the political-question doctrine for justiciability and the plan-of-the-Convention doctrine for state sovereign immunity) are opaquely nontranssubstantive because discerning their inconsistent character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional-remedies law—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent nontranssubstantivity more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque nontranssubstantivity into diverse doctrinal areas before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering transsubstantivity as an important—but not absolute—aspect of constitutional-remedies law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political and thereby reinforcing its legitimacy at this time of skepticism.

Keywords: constitutional rights, constitutional remedies, transsubstantivity, federal courts, civil-rights litigation, Supreme Court

Suggested Citation

Crocker, Katherine Mims, Constitutional Rights, Remedies, and Transsubstantivity (March 12, 2023). 110 Virginia Law Review (2024 Forthcoming), Available at SSRN: or

Katherine Mims Crocker (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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