The blog in a nutshell

The blog in a nutshell

Tuesday, April 26, 2016

A not-overly-well-thought-out unifying theory that all "constitutional rights" are just prohibitions

Actually, that wasn't technically the issue.  Technically, the issue was what 42 USC 1983 vindicates, a question of statutory interpretation. But I think you get to the same place either way.

As the majority decision correctly notes about the First Amendment, constitutional rights are not so much as "rights" per se, they are generally instead prohibitions of certain types of conduct upon the government.  I actually think--as this post explains--this is true regardless of the framing of the Constitution, so when them majority contrasts the First Amendment with the Fourth Amendment, which, Justice Breyer notes " begins by speaking of the 'right of the people to be secure in their persons, houses, papers, and effects . . . ,'" I think the distinction is without a difference.  The Fourth Amendment still prohibits certain government conduct.  The individual inquiry - about "who" has the right - is merely one of standing.  But standing is not an issue in this case.

Instead, this is a question of statutory interpretation under the Act which gives a federal damages claim for such a breach, 42 USC 1983.  

42 USC 1983 states that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...

If we put on our law student hats, the "elements" of such a claim are that the person acted (1) under color of any statute (etc.) (2) subjected any citizen to (3) the deprivation of a right secured by the Constitution, and (4) [proximately] causes (5) injury.    In this case, 1, 2, 4, and 5 are not disputed...or are they? 

And so we get to the same point:  Has the plaintiff suffered a deprivation of a right?  And we get to the same answer from my position:  Yes, because that's really just asking whether the Government has acted unconstitutionally toward the individual.  

To me, (3) is really just saying that the injury must be caused by a Constitutional violation.  The use of the affirmative language of "rights" is rhetoric that means nothing.  If you must think of it from the vantage of the individual, the individual's right is really not to be injured by an unconstitutional action.

So why is the majority right?  Let's look at the most obvious place to find out...the dissent:

When the dissent says, critical to its analysis, that  "[t]he mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured," I think that only really means something because the government's action may not have caused an injury of the type that the Constitution protects.

Now let's look at the example used by the dissent:
Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U. S. 648, 661 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a §1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury
Well, yes, that's right.  But the point is that the injury suffered there was a traffic delay.  (In contrast, if the motorists were on a line in which they were told they could not leave, they may have been seized.)  A traffic delay is never really a legally cognizant injury.*  If you cause a traffic injury due to your reckless driving, the people who are late to work can't sue you.  

At first glance, a better example would have been a search of person A's home, which might turn up evidence about person B, who then goes to jail.  The Supreme Court has ruled that person B can't exercise person's A's rights and move to exclude the evidence.  But I think the answer is, that in the exclusionary rule situation, the injury being asserted isn't directly cognizable:  we don't consider someone who is  correctly arrested for committed a crime to be suffering a legally cognizable injury, either.  The exclusionary rule, however, isn't designed to remedy an injury (which is why some conservatives hate it) but, instead, is designed as prophylactic, i.e., a realization that without the rule, there would be no real ability to enforce the constitutional limitation against the government. And the standing requirements isn't because of "injury," but instead because of a counter-concern about the negative effects of the prophylactic rule applying more broadly than necessary to keep the government in check. 

So let's look at a third example, that may work better.  In issuing a search against A's private residence, they destroy B's property.  Does B have a claim? His privacy rights were not implicated, after all.  And, to be sure, I actually don't know the answer off the top of my head (if someone knows, chime in),  But I suspect that the answer of yes would be reasonable. 

And so, and I am just ruminating here, but I think we should always keep in mind that the term "rights" is a misnomer.  Rather, the Constitution is a list of government prohibitions.  To Thomas, that's not true at all (although I suspect in other situations Thomas might agree), and to Breyer, it's only true depending on how the government phrased the right in the Constitution.  But, notwithstanding arguments by some on the left for "positive rights,"**  I think it is always true.  The term "rights" is useful in that it connotes that there must be standing, causation, and a legally cognizant injury that flows from the harm. 

Taking that view of the law, it is unquestionable that "not being fired" is precisely the kind of injury that the First Amendment is supposed to vindicate.  The question then is the happenstance of the fact that the government's illegal motive turned out to be a misunderstanding changes the causation and injury analysis.  And I don't think it does. 

Thomas would say it does because the injury of "not being fired" is not cognizable.  Instead, the injury has to be a deprivation of a constitutional right, and nobody has a constitutional right to employment.   Thus, to Thomas, the right only protects the plaintiff if he engaged in speech.  But why stop there?  Technically,Section 1983 prohibits the deprivation of rights, not the punishment for exercising rights.  Taking Thomas's logic to its rational conclusion, the Plaintiff would have to prove that he was *unable* to speak because of the government's conduct.  And his remedy might be limited to the metaphysical value of that speech.  Yet I don't think even Thomas would go that far. 

Again, I'm kind of  just shooting from the hip here.  So can anyone explain a fundamental flaw in my theory?  Can someone think of a situation in which the government causes a type of injury we normally would consider legally cognizable, which directly and naturally flows from a constitutional violation, but it would be unreasonable to give someone a 1983 claim because it wasn't "his rights" that were violated?  

*  I suppose we can imagine situations where causation is so obvious and "proximate" that there might be an exception - say, where a guy intentionally caused a car crash to prevent someone from getting to the hospital in a specific ambulance, so that person would die.  But Alito's example doesn't establish that kind of narrow exception.

**To me, a "positive right" to do Y might exist, but only conditionally.  If you give someone A, you may be obligated to give other people A as well.  But you could always, you know, not give person A in the first place.  Then, the prohibition is that the government is prohibited from doing X without doing Y.