Monday, March 12, 2012
Pamela Karlan argues in the Boston Review that the Supreme Court has stepped back from protecting civil rights and civil liberties in recent years by constricting the "remedial machinery" of rights protection (in addition to constricting the very definition of rights in the first place).
Karlan's short piece, What's a Right Without a Remedy?, presents the argument with especial reference to the exclusionary rule and the qualified immunity doctrine in Section 1983 litigitation. She argues that on the one hand the Court has been chipping away at at a principal criminal procedure protection, the exclusionary rule, leaving those harmed without a criminal procdure remedy. But on the other hand the Court has gutted the other principal enforcement mechanism, 18 U.S.C. Sec. 1983, through the doctrine of qualified immunity. The net result: The Court's tightening of the "remedial machinery" is leaving plaintiffs without a remedy.
In its cases cutting back on the exclusionary rule, the Court often points to the availability of alternative mechanisms for enforcing the Fourth Amendment's prohibition of unconstitutional searches and seizures. The Court has repeatedly highlighted the option to seek civil damages under a Reconstruction-era statute (42 U.S.C. Sec. 1983), which authorizes suits against state and local officials and governments that deprive individuals of their constitutional rights. Yet the Court has substantially weakened the section 1983 remedy at precisely the same time that it has weakened the exclusionary rule, engaging in a sort of shell game in which the presence of each remedy serves to justify weakening the protections of the other.