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.

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4 Responses

  1. Shag from Brookline says:

    Isn’t much of this dicta to make political points, e.g. Marbury? See Sandy Levinson and Jack Balkin’s “What Are the Facts of Marbury v. Madison?” 20 Constitutional Commentary No. 2, Summer 2003, page 255.

  2. Joe says:

    Marbury notes “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.”

    Moving on … is it true that he had no remedy? He couldn’t do it the way he tried to do it. But, not knowing the complications of the law at the time, is it technically true that there wasn’t any approach (which would have began at district court, so no violation of Art. III) available to him?

  3. Shag from Brookline says:

    Often someone who receives an injury may have no standing under Article III so he/she may have to sit down. The case/controversy interpretation of Article III in conjunction with the Cert procedure may work in tandem to deny many who receive an injury recourse at SCOTUS. That is fact, not fiction.

  4. Joe says:

    “recourse at SCOTUS”

    Sometimes, the “remedy” has to come by other means.