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Home > School of Law > Student > Law Review > Vol. 44 > Iss. 3 (2022)

 

Western New England Law Review

Abstract

In Marbury v. Madison, Chief Justice Marshall proclaimed that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he [sic] receives an injury.” This pronouncement has shaped a widespread assumption that the rule of law under our Constitution entails a right to seek a judicial remedy when constitutional rights are violated. But, perhaps surprisingly, the Supreme Court has never squarely held that such a right exists. And some recent decisions, most particularly Whole Woman’s Health v. Jackson, decided in December of 2021, cast serious doubt on the truth of Marshall’s bold proposition.

This Article claims, in contrast to the Supreme Court’s recent direction, that much of our law of constitutional remedies depends on the premise that a person who is injured by a constitutional violation has a right to sue for judicial relief for that injury. Specifically, the injunctive relief exception to sovereign immunity established by Ex parte Young, the Bivens damage remedy for (some) constitutional violations by federal officers, the duty of state courts to remedy constitutional violations by their own governments, and the assumption that some court of competent jurisdiction must be available to hear suits raising constitutional claims all rely, at least tacitly, on the proposition that the Constitution is a sword.

Were the Supreme Court openly to acknowledge and endorse this proposition, the remedial regime available for constitutional violations and, with it, the rule of the Constitution as our supreme law, would inevitably become far more secure than they are today. On the other hand, the current Court’s apparent indifference to Chief Justice Marshall’s Marbury description of “the very essence of civil liberty” undermines the coherence of this regime and thus threatens its stability and vitality.

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