Rights Essentialism and Remedial Equilibration

Abstract

There is no such thing as a constitutional right, at least not in the sense that courts and constitutional theorists routinely assume. A leading strategy employed by constitutional discourse to legitimate and protect the privileged status of constitutional rights is to segregate sharply the superior realm of rights from the inferior realm of remedies. The right/remedy distinction in constitutional law serves to maintain the illusion that rights are defined by courts through a mystical process of identifying pure constitutional values without regard to the sorts of functional, fact-specific policy concerns that are relegated to the remedial sphere. This illusion is fundamental to the self-image and perceived legitimacy of constitutionalism and judicial review. In the actual practice of constitutional adjudication, however, the qualitative distinction between rights and remedies blurs, or even dissolves. No less than in contract and property law--where from Holmes to Calabresi & Melamed we have recognized that rights and remedies are functionally interrelated--rights and remedies in constitutional law are interdependent and inextricably intertwined. Drawing on illustrations from disparate areas of constitutional law, this Article develops a conceptual taxonomy of right-remedy relationships. The richer understanding of the types and typicality of right-remedy interactions that emerges potentially has sweeping practical and theoretical implications. In light of this understanding, the Article reconsiders the appropriate division of constitutional authority between courts and the political branches; the notions that constitutional rights can be over- and under-enforced; the debate between top-down constitutional theorists like Ronald Dworkin and pragmatist, bottom-up critics like Richard Posner and Cass Sunstein; and, most fundamentally, the purposes and legitimacy of judicial review.