Fractured body politic

The Constitution contains many legal rules and rights. None enforces itself.’ So begins University of Chicago law professor Aziz Z. Huq’s account of how the US courts, and particularly the Supreme Court, have failed to hold US governments responsible for breaching individuals’ constitutionally guaranteed rights.

At the same time as the courts have retrenched on remedies for individuals, they have welcomed businesses’ constitutional challenges to regulation by the legislative and executive branches. Professor Huq deems this combination ‘regressive’, pointing out how the courts enable the state to avoid paying for its unlawful actions against individuals but block state action in the form of regulation.

This slim volume argues that ‘the rule of law is a divisible good…selectively supplied by courts to some while being denied to others’.   So far, so obvious. The first third of the book charts the federal court system through history and its rise to ‘a degree of autonomy and policy-making authority that would have been unthinkable in the early years of the Republic’. In the first half of the 20th century, this judicial power held the state in check through such remedies as the exclusion of evidence obtained through unconstitutional, warrantless searches and the award of damages for abusive police action violating a citizen’s right to the Privileges and Immunities guaranteed by the Fourteenth Amendment.

So what happened? What is causing this ‘remedial recession’, the ‘collapse’ signalled in the title? Professor Huq suggests that the increasing visibility in the public sphere of the 1960s of women and racial minorities created a backlash from voters who began to feel less invested in the collective common good and more interested in protecting what they had. This arguably led to a more outcome-directed, partisan approach to the appointment of federal judges. The author also suggests that the Supreme Court’s desire to decrease the federal caseload may have dampened the court’s interest in creating yet more reasons for individuals to file federal lawsuits.    

Where do we go from here? The way to reform, it is suggested, lies through the formation of ‘a new political coalition’ that would enact statutory remedies to compel the courts ‘into more deliberate service in favor of inclusion, dignity, and popular voice’. Observers of the current fractured American body politic will doubt the likelihood of such a happy outcome.

Susan McFadden is a solicitor and US lawyer, recently retired from the London-based US immigration firm Gudeon & McFadden