Rights, Structure, and Remediation: The Collapse of Constitutional Remedies

In The Collapse of Constitutional Remedies, Aziz Huq challenges the idealistic view of federal courts as faithful exponents of the Constitution's protections for liberty. He insists that the Framers' design of Article III is fundamentally flawed, resulting in a judiciary that is ill-disposed to furnishing individual remedies for unconstitutional violence yet overly solicitous of constitutional challenges to government regulation--especially challenges founded upon the Constitution's structural principles of federalism or separation of powers. According to Huq, this judicial double standard exacerbates societal inequities to the detriment of marginalized groups. He contends that constitutional provisions that limit government's regulatory authority have largely malign effects, whereas individual rights against corporeal coercion protect the most vulnerable at little cost to society at large. To address the perceived failings of the judiciary--and to achieve what Huq calls 'redistributive goals'--he proposes various reforms, including legislation that would strip federal courts of jurisdiction to enforce constitutional protections that Huq considers harmful. In this Book Review, we set forth our own account of individual rights, governmental structure, and judicial remediation of constitutional wrongs--an account that differs from Huq's in many respects. Huq is undoubtedly right that federal courts have sometimes come up short in dispensing remedies for official misconduct. He is also justified in his criticisms of certain doctrines, particularly qualified immunity, that stand in the way of those seeking legal redress for constitutional wrongs. But Huq's claims of remedial 'collapse' are largely overstated, and his allegations of judicial partiality for certain litigants and constitutional provisions do not withstand scrutiny. We further argue that Huq's normative case for exalting some constitutional rules while disregarding others is unsound and misguided. In so arguing, we highlight the benefits of constitutional principles that Huq disparages-such as structural provisions and so-called 'rights against regulation' - as well as the costs of those he celebrates. Finally, given our concern that measures such as Huq's proposed jurisdiction-stripping legislation are inimical to the rule of law, we conclude with alternative proposals that we believe would advance his professed aims without imperiling our system of constitutional governance.
REVIEW CONTENTS INTRODUCTION 2129 1. HUO's ARGUMENT: RECURRING THEMES 2132 A. The Role of Judicial Independence 2133 B. Identifying 'Constitutional Wrongs' & 'Constitutional Remedies' 2137 1. Methodology 2137 2. Identifying [...]