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- Title
THE PATH OF THE CONSTITUTION: THE ORIGINAL SYSTEM OF REMEDIES, HOW IT CHANGED, AND HOW THE COURT RESPONDED.
- Authors
Kian, Sina
- Abstract
This Article explores how the path of the common law shaped some of the Supreme Court's most important decisions regarding constitutional remedies. The Article first introduces the original system of common law remedies for constitutional rights. It then explains how these remedies atrophied, both doctrinally and pragmatically, and how this posed deep problems for the constitutional rights that depended on them. The Article selects three cases--Mapp v. Ohio, Monroe v. Pape, and Bivens v. Six Unknown Named Agents--to demonstrate how concerns about those remedies shaped constitutional rights. These cases have been debated many times over, but for all the debate, there has been scarce attention paid to the problem the Court was addressing: the relationship between the Constitution and common law remedies and, more specifically, what to do about constitutional rights that depended on dwindling common law remedies. Indeed, this relationship hardly receives any attention in classrooms or scholarship today, yet it is at the core of the judiciary's role in implementing the Constitution. This descriptive gap has distorted our normative debate about the relative merits of these cases. The last part of the Article suggests four potential methodologies for coherently managing the relationship between the Constitution and common law remedies.
- Subjects
UNITED States; LEGAL remedies; COMMON law; CONSTITUTIONAL law; MAPP v. Ohio; MONROE v. Pape (Supreme Court case); BIVENS v. Six Unknown Named Agents of Federal Bureau of Narcotics (Supreme Court case)
- Publication
New York University Law Review, 2012, Vol 87, Issue 1, p132
- ISSN
0028-7881
- Publication type
Article