Four Kinds of Constitutional Liability Rules

I’m back from my trip, so I thought I would post something more substantial.  I’m analyzing situations where constitutional rights are protected by a liability rule as opposed to a property or inalienability rule.  Since law professors like to express themselves in “four-box” frameworks, here are the four in my paper.

Box #1 — An individual right protected by a liability rule.

This is your standard Section 1983 tort suit or claim under the Takings Clause.  The government can violate your right but must pay damages if it does.  (Qualified immunity, of course, complicates this.)

Box #2 — A government right protected by a supermajority rule.

This is a situation is which a government official or institution has an entitlement that can be “purchased” without the owner’s consent by other government bodies through an extraordinary procedure.  For example, a federal judge has life tenure, but can be removed through impeachment and conviction.  Courts have the right to hear habeas corpus petitions, but Congress and the President can suspend that authority in an emergency. The President has the right to veto bills, but that can be overridden by Congress.  And so on.

Box #3 — An individual right that can be taxed.

The opposite of a tort suit is a tax.  In Box #1, the government pays damages for invading your rights.  In Box #3, you must pay the government to exercise your rights.

This is a type of regulation that is not popular these days (consider the poll tax), but it ought to get more consideration (especially in the context of campaign finance), as I will explain in a subsequent post.

Box #4 — A government right that can be exercised only after paying a penalty.

The opposite of protecting a government body or official through a supermajority rule is saying that an institution must pay a political price to invoke its authority.  Section Two of the Fourteenth Amendment is the best example, as it said that states retained the authority to bar African-Americans from voting but would receive fewer seats in the House of Representatives and the Electoral College if they did.

Boxes #1 and #2 are familiar.  Boxes #3 and #4 are more unusual and will be the focus of my paper (I’m going to call this “Constitutional Taxes,” I think.)

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2 Responses

  1. Brett Bellmore says:

    What we’re missing is box 5: An individual right that the government simply can’t violate, period. I suppose we’re missing it because the judiciary is part of the government… So even the strongest mandates simply become suggestions or rules of thumb.

  2. Gerard Magliocca says:

    There are many such rights, but they do not involve liability rules.