Legal Fictions and Constitutional Change–Part Two
A second fiction that is used to manage constitutional change is the “right/remedy disjunction.” Sure you have a constitutional right, the Court says. You just don’t have a remedy. This sounds better than having no right at all, but upon reflection it is not if there will be never be a remedy.
Some leading candidates in this category are Marbury, Worcester v. Georgia, Giles v. Harris, Perry v. United States, and Ex Parte McCardle (sort of). All of these cases left the right at issue intact but found creative ways to say that there was no remedy. I’ll go through some more techniques later this week.