For the symposium on James Pfander, Constitutional Torts and the War on Terror.
Federal courts today are not eager to enforce constitutional
rights against individual government officials who are alleged to violate them.
Indeed, federal courts frequently dismiss such claims on various technicalities
without ever confronting the substance of the rights invoked. That is notably
true in 21st-Century litigation over the war on terror, where federal courts
have expressed skepticism (or more) about implied causes of action,
extraterritorial constitutional rights, and the damages remedy.
But was it always thus, and must it be thus, should it be
thus, today? Constitutional Torts and the
War on Terror, by James Pfander, sets out to answer these questions. (To
all three: “No.”) Pfander frames the book by showing us that legal rights were
originally enforced against government officials in a quite different way.
Government action was assumed to be regulated by generally applicable law.
Ordinary citizens could challenge the legality of that government action
through ordinary suits at common law. And judges saw their primary duty as
simply applying the law to the cases before them, leaving for lawmakers the
task of indemnifying officials or changing the law where its consequences were
undesirable.
This 19th-Century model of government legality may seem
quaint, but it teaches important lessons today. Pfander argues that our
constitutional tort regime fails to live up the structure or benefits of the
old regime, and fails to justify its replacement. The common law has worked
itself foul. Pfander may be right or wrong about the consequences, but I think
his more important critique sounds in legal process: The federal courts might
have you believe that today’s limits on constitutional torts are the result of
an admirable judicial restraint – a hesitation to step into domains where
judges have no commission. But the restraints are of the judiciary’s own
devising, and thus in deep tension with the original judicial duty – to apply
the law rather than make it.
I may be taking this point further than Pfander would, but I
emphasize it because it amounts to my only real disagreement with the book –
that it does not take the original model of government legality nearly far
enough. Consider two points.
First, the problems with today’s doctrines of constitutional
torts are not limited to the war on terror. You don’t need to look to
Guantanamo Bay, extraordinary rendition, or the CIA torture report to see
government lawlessness gone unchecked. Alas, unchecked constitutional
violations happen every day on America’s streets, as police officers exceed
their discretion to search or to use force, against both the guilty and the
innocent. Constantly expanding exceptions to both civil liability and the
criminal exclusionary rule make those violations difficult to remedy. And beyond
the police -- schoolteachers, prosecutors, and nearly every government official
is insulated from accountability by judicially-devised restraints unknown to
the common law.
To see the full scope of this problem, we ought not limit
our focus narrowly to the war on terror, but rather consider the broader sweep
of constitutional remedies. Once upon a time, we had common-law and self-help
remedies for government lawlessness. Then for a time, the judiciary oversaw the
replacement of the original remedies with substitute remedies such as the
Bivens action and the exclusionary rule. But in more recent years, the courts
have begun to roll back the substitute remedies, yet without being willing to
revive the original remedies. There are valid and hard questions about the role
of common law evolution in constitutional remedies – to what extent should we return
to the original remedies and to what extent should we accept sensible modern
substitutes? – but we already have too
few remedies and might be on a path to even fewer. That is a real problem. The
war on terror cases that Pfander writes about are simply a symptom of that
broader problem.
Of course it is true that the law proceeds by halves, and so
we can reform one area of doctrine without meaning to approve of what happens
in a related area. But if we must prioritize, I would put domestic lawlessness
against ordinary U.S. citizens at the core, and some of the abuses of the war
on terror closer to the periphery. A full accounting of the original law of the
war on terror may also raise technicalities that Pfander does not address –
such as the
allegedly reciprocal relationship between “allegiance” and “protection” in 19th-Century
legal theory.
Second, and more specifically, there is the problem of
qualified immunity, a judge-made doctrine which insulates government officials
from suits for damages unless they violated “clearly established law.” While
that formulation might seem somewhat innocuous, in practice it amounts to a
super-duper rule of lenity protecting only government officials. Ambiguities in
prior precedent are assumed in the officer’s favor, and a plaintiff must point
to a remarkably specific precedent already adjudicating the issue or a really
egregious set of facts.
Pfander provides an intriguing reform, which is to hold
qualified immunity inapplicable to claims for nominal damages. This would allow
plaintiffs to achieve symbolic victories and establish law for future cases,
without unduly burdening or deterring government officials who are sued.
But in my view, this is not enough. The fundamental problem
with qualified immunity – or so I
argue in a recent article – is that it is contrary to law, and has neither
a statutory nor common-law warrant. (This argument also owes a debt to
Pfander’s historical approach.) But Pfander’s nominal damages solution is less
than half a solution to this problem. It exalts a secondary duty of the
judiciary – to write judicial opinions that can be cited as precedent in future
cases – while neglecting the more fundamental one to enforce the law in the
case at hand.
At bottom, these divergences are not really about
disagreement. Rather, they reflect the fact that Pfander is on to a theory of
federal courts that is more consequential than even his own conclusions
suggest. Pfander repeatedly notes that many issues in the war on terror are
questions of ordinary law, appropriate to our ordinary procedures for
vindicating legal rights. But the point also implies a reverse diagnosis: The
problem with constitutional torts and the war on terror is really the broader
problem of constitutional torts in our ordinary legal system.
William Baude is Neubauer Family Assistant Professor of Law
at the University of Chicago Law School.
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