Common Law Shaped Some of the Supreme Court’S Most Important Decisions Regarding Constitutional Remedies
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\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 1 21-MAR-12 13:28 THE PATH OF THE CONSTITUTION: THE ORIGINAL SYSTEM OF REMEDIES, HOW IT CHANGED, AND HOW THE COURT RESPONDED SINA KIAN* 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 relation- ship between the Constitution and common law remedies. INTRODUCTION ................................................. 133 R I. THE ORIGINAL SYSTEM ................................. 138 R A. Judicial Enforcement of Constitutional Rights in a Government of Enumerated Powers................. 138 R B. Original Remedies Applied in the Antebellum Era . 145 R II. EROSION OF COMMON LAW REMEDIES ................. 149 R A. Officer Immunity ................................... 150 R B. Pragmatics .......................................... 159 R C. The Common Law in a New World................. 161 R III. RETHINKING CORE DECISIONS OF CONSTITUTIONAL IMPLEMENTATION ....................................... 162 R A. The Exclusionary Rule .............................. 163 R 1. The Federal Exclusionary Rule.................. 166 R 2. Incorporating the Federal Exclusionary Rule .... 176 R * Copyright 2012 by Sina Kian, Law Clerk to the Honorable Thomas B. Griffith, United States Court of Appeals for the District of Columbia Circuit, 2010–11; J.D., 2010, Stanford Law School. I owe thanks to Benjamin Alden, Janet Alexander, Brian Barnes, Joshua Cohen, Anthony Dick, George Fisher, Robert Gordon, John Harrison, Jake Heller, Pamela Karlan, Orin Kerr, Amalia Kessler, Lawrence Lessig, Steven Menashi, David Pozen, Dan Schweitzer, Matthew Seligman, and Eugene Volokh. 132 \\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 2 21-MAR-12 13:28 April 2012] THE PATH OF THE CONSTITUTION 133 B. Federal Causes of Action ........................... 182 R 1. Monroe v. Pape................................. 182 R 2. Bivens v. Six Unknown Named Agents ......... 190 R IV. THE CONSTITUTIONAL OPTIONS......................... 192 R A. Option 1: The Stoic Constitution .................... 196 R B. Option 2: Rights Preservation ....................... 199 R C. Option 3: A Baseline System of Common Law Remedies............................................ 201 R D. Option 4: The Laboratories of Democracy .......... 202 R CONCLUSION ................................................... 204 R INTRODUCTION On September 24, 1766, colonial customs officials, accompanied by a sheriff, knocked on the door of merchant Daniel Malcom. After presumably brief pleasantries, the officials revealed their writ of assis- tance—a general warrant issued by a customs official. Mr. Malcom inspected the warrant and allowed the men into his home, but he specif- ically denied them access to a locked cellar. Believing the warrant did not confer authority to enter the cellar, Mr. Malcom informed the offi- cials that they could not lawfully enter and that he would use force against them if they tried. The officials abided and left, but not for long. They returned with a specific search warrant, but this time to a locked home and a crowd numbering between fifty and three hundred people gathered to protest the intrusion.1 One scholar called this “the most famous search in colonial America.”2 On February 11, 2010, at 8:30 p.m., a fully armed SWAT team in Missouri gathered in the dark outside the residence of Jonathan Whitworth. One officer began knocking on the door, yelling “Police!” and “Search warrant!” When a resident meekly opened the door, a member of the team shoved it open, allowing the entire team to storm the residence. They shot and killed one resident dog, and shot and wounded another. They arrested Mr. Whitworth, who did not resist, and led him out of his home. The entire episode took place before Mr. Whitworth’s wife and seven-year-old son. As a result of the search, the SWAT team discovered “a grinder, a pipe and a small amount of 1 See JOHN PHILIP REID, INA REBELLIOUS SPIRIT 10–25 (1979) (describing the incident). 2 OTIS H. STEPHENS & RICHARD A. GLENN, UNREASONABLE SEARCHES AND SEIZURES: RIGHTS AND LIBERTIES UNDER THE LAW 39 (2006). \\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 3 21-MAR-12 13:28 134 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132 marijuana.”3 There are approximately 40,000 such incidents every year in the United States, and none receive very much attention.4 Much has changed in our constitutional culture, not least of which is how these two men could vindicate their rights in court. This Article describes the original system of remedies, how that system changed, and how those changes affected constitutional rights as we recognize them today. Originally, the Constitution was to be implemented through remedies available for violations of common law rights.5 For example, if the customs officials had improperly entered Mr. Malcom’s home, he could have sued the officials for trespass. If the search were unconstitutional, the officers would have had no defense for their actions and would have been liable for money damages. In the antebellum Union, this was a robust remedy. After the Civil War, however, the availability and effectiveness of the damages remedy declined. Officers committing the same offense were increasingly able to invoke immunity against lawsuits and more generally avoid the prospect of paying damages for such acts. This trend seriously threatened constitutional rights6 and impli- cated a fundamental question that receives little attention today: What is the relationship between the Constitution and the common law? In other words, what, if anything, should the judiciary do when the common law remedies on which constitutional rights had depended begin to change in ways that threaten those rights? If Mr. Whitworth’s rights were violated, and if the common law remedy of trespass were no longer available, would he be out of luck? This Article selects three particularly important cases—Mapp v. Ohio,7 Monroe v. Pape,8 and Bivens v. Six Unknown Named Agents of Federal Narcotics Bureau9— as emblematic of how the problem of dwindling common law reme- dies affected the Court’s jurisprudence. Today, Mr. Whitworth would 3 David Brennan, Family Questions SWAT Drug Search that Led to Dog’s Death, COLUMBIA DAILY TRIB., Feb. 23, 2010, at A1. A video of this event is available at http:// www.youtube.com/watch?v=qpfLLtPJvxA (last visited Feb. 8, 2012). 4 RADLEY BALKO, OVERKILL: THE RISE OF PARAMILITARY POLICE RAIDS IN AMERICA 1 (2006). 5 This Article generally refers to these as “common law remedies,” but it is worth clarifying that remedies for common law (and statutory) rights were available at both law and equity. 6 Contemporary discussion of constitutional remedies often focuses on the many intri- cacies of modern remedies, treating common law remedies as obsolete curiosities. Cf., e.g., MICHAEL L. WELLS & THOMAS A. EATON, CONSTITUTIONAL REMEDIES: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 11–13 (2002) (devoting fewer than two out of over two hundred pages to an in-depth discussion of common law remedies). 7 367 U.S. 643 (1961). 8 365 U.S. 167 (1961). 9 403 U.S. 388 (1971). \\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 4 21-MAR-12 13:28 April 2012] THE PATH OF THE CONSTITUTION 135 likely find his remedies in these cases: exclusion of evidence (if the evidence was illegally obtained) and money damages (if the officers violated his constitutional rights without qualified immunity). Of course, the Court had other options for how to respond to the chal- lenge of dwindling common law remedies, and the Article will end by briefly describing the alternatives. A more detailed outline of the Article’s structure is as follows. Part I introduces the enumeration principle—the simple idea, implicit in popular sovereignty and explicit in the Ninth Amendment, that powers not given to government are held by the people. The enumera- tion principle defines “unconstitutional” acts as those that govern- ment does not have the power to authorize. Part I then explains how this principle historically interacted with the common law to create a system of remedies for violations of constitutional rights. Throughout the eighteenth and nineteenth centuries, judicial enforcement of con- stitutional rights took two forms, both of which were dependent on the enumeration principle. The first is familiar today: Defendants