What’s a Right Without a Remedy?
In the momentous 1803 case Marbury v. Madison, Chief Justice Marshall observed that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury” and warned that a government cannot be called a “government of laws, and not of men … . if the laws furnish no remedy for the violation of a vested legal right.”
When the government itself violates individuals’ rights, it is especially important for courts to furnish a remedy. To be sure, providing remedies to the victims of unconstitutional conduct after the fact is often at best an imperfect solution. While money plausibly provides full compensation to, say, a government worker denied income while suspended for engaging in First Amendment-protected activity, it may be far less effective in a case involving an unconstitutional strip search: Can money really restore the sense of security that the victim has lost? If not, perhaps it can at least enable her to begin rebuilding her life.
Ideally, backward-looking remedies can deter future violations. If government officials or agencies know that they will be held to account, they will be less likely to commit violations in the first place. And injunctive remedies—judicial orders either to stop engaging in a particular practice (for example, racial profiling of motorists) or to start doing something the government has so far failed to do (for example, issuing marriage licenses to same-sex couples)—have been critical to enforcing civil rights and civil liberties.
More broadly, judicial remedies perform an important expressive function: they drive home to the public that the law takes constitutional violations seriously. This can galvanize popular movements to vindicate constitutional values even more fully. For example, the Supreme Court’s decisions in Brown v. Board of Education (1954-55), held that purposeful racial segregation of public schools violated the Fourteenth Amendment’s equal protection clause and ordered that school boards dismantle their dual school systems. The Brown decisions by themselves achieved very little actual integration, but the Court’s condemnation of segregation provided critical support to a mass movement that culminated in statutes such as the Civil Rights Act of 1964, which crafted more effective tools for dismantling Jim Crow in schools, public accommodation, employment, and housing.
So a lot depends on the availability of a remedy: when the courts refuse to provide one, rights can be reduced to mere lines on paper.