Richard H. Fallon, Constitutional Remedies: In One Era and Out the Other, 136 Harv. L. Rev. 1300 (2023).
Abstract: Despite the ringing dictum of Marbury v. Madison that “every right, when withheld, must have a remedy,” rights to remedies have always had a precarious constitutional status. For over one hundred years, the norm was that victims of ongoing constitutional violations had rights to injunctive relief. But the Constitution nowhere expressly prescribes that norm, and recent Supreme Court decisions, involving suits for injunctions and damages alike, have left the constitutional connection between rights and remedies more attenuated than ever before. This Article explores the conceptual and doctrinal connections between constitutional rights and entitlements to judicial remedies. Whole Woman’s Health v. Jackson — which largely vindicated Texas’s strategy for insulating an antiabortion law from judicial challenge via suits for injunctions — furnishes the Article’s primary window into the current doctrinal landscape. But the Article’s perspective is broadly historical. It assumes throughout that we cannot understand the present law without understanding the background from which it developed and, in increasingly important respects, from which it now deviates. The Article’s central thesis combines empirical and normative aspects: Although the modern Supreme Court has wielded separation of powers arguments to truncate constitutional remedies, the Court’s premises are mistaken. The Constitution frequently, though not invariably, requires effective remedies for constitutional rights violations. When Congress fails to authorize such remedies, nothing in the Constitution’s history or tradition precludes a role for the Supreme Court in devising remedies that are necessary to enforce substantive rights. If we have entered an era in which a majority of the Justices believe otherwise, the situation is a deeply regrettable one in which the concept of a constitutional right will be cheapened.