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Diceyâ•Žs Nightmare: an Essay on the Rule Of Dicey’s Nightmare: An Essay on The Rule of Law James E. Pfander* The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Article builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Article compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today. DOI: https://doi.org/10.15779/Z383N20F1W * Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. Thanks to Andrew Bradt, Amanda Tyler, and the participants in the Berkeley Law Public Law and Policy Workshop to whom I presented a version of this paper; to Steve Vladeck and Bobby Chesney for their invitation to the University of Texas at Austin conference where I developed these ideas; to Baher Azmy, Will Baude, Nathan Chapman, Richard Fallon, Vicki Jackson, Geremy Kamens, Andrew Kent, the Honorable Colleen McMahon, Steve Ross, and Ingrid Wuerth for comments on early drafts; and to my colleagues Jide Nzelibe and Marty Redish for pressing me to think more clearly about constitutional remedies. I owe thanks as well to Alex Reinert, Joanna Schwartz, Greg Sisk, and Steve Vladeck for the comments on my book, Constitutional Torts and the War on Terror, that led in a roundabout way to this project. 737 738 CALIFORNIA LAW REVIEW [Vol. 107:737 This Article focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Article examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair. Introduction ............................................................................................ 739 I. Dicey and the Rule of (Common) Law ............................................... 744 II. Constitutionalizing Limits on Military Activity ................................. 747 A. Habeas Remedies for Military Detention of Citizens .......... 748 1. The Nineteenth Century ................................................. 748 2. The Twenty-First Century ............................................. 750 B. Money Remedies for Tort Claims ........................................ 754 1. The Nineteenth Century ................................................. 754 2. The Twenty-First Century ............................................. 756 a. The Road to Bivens ................................................. 756 b. Judicial Hesitation in Times of War ....................... 758 C. Property Taken in the Course of Military Operations .......... 761 1. The Nineteenth Century ................................................. 762 2. The Twenty-First Century ............................................. 766 D. The Inadequacy of Statutes Incorporating Common-Law Remedies .............................................................................. 771 III. What Would Dicey Say? ................................................................... 773 A. Changing Perceptions of Judicial Duty ................................ 774 B. Changing Standards for the Assessment of Legality ........... 778 C. The Choice of Remedial Forms ........................................... 781 D. The Problematics of Symbolic or Expressive Litigation ..... 783 Conclusion .............................................................................................. 787 2019] DICEY’S NIGHTMARE 739 INTRODUCTION In his well-known work on the British constitution, A.V. Dicey both explained and celebrated the British theory of parliamentary sovereignty.1 Dicey also criticized constitutional law, comparing the sturdy common law of England, with its trespass actions and habeas petitions, to the more theoretical assurances of the French and Belgian constitutions.2 For Dicey, common-law remedies imposed practical constraints on government action and differed from airy constitutional assurances that had little holding power in the face of a determined bureaucracy.3 By expressing a preference for the more reliable common law, Dicey helped to frame the terms of modern debates over bills of rights and human-rights legislation.4 Indeed, Dicey’s challenge to constitutionalism and judicial review poses questions at the heart of much twenty-first-century public law.5 While Dicey reverberates through the Commonwealth,6 his work has been less central to the evaluation of government accountability and the rule of law in 1. See A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 39– 85 (10th ed. 1959). For an account of Dicey’s life as a scholar, see Mark D. Walters, Dicey on Writing the Law of the Constitution, 32 OXFORD J. LEG. STUD. 21 (2011). In his introduction to the Tenth Edition, the editor updated the reader on many of the issues Dicey raised. See E.C.S. Wade, Introduction to Tenth Edition by the Editor, DICEY, supra, at xvii. 2. See DICEY, supra note 1, at 206–07 (treating the assurance of liberty in the Belgian constitution as a “proclamation” that gives but “slight security” and emphasizing the importance of studying the “legal methods” by which exercise of the right has been secured); id. at 208 (describing the trespass action and the privilege of the writ of habeas corpus as the principal legal means for the enforcement of the right of personal liberty in England); see also id. at 238–41 (contrasting the French guarantee of freedom of the press in the Declaration of the Rights of Man with the English practice of barring prior restraint and making individuals responsible for their resulting freedom to speak and publish through libel actions). For a more up-to-date comparison, see James E. Pfander, Government Accountability in Europe: A Comparative Perspective, 35 GEO. WASH. INT’L L. REV. 611 (2003). 3. Dicey cited Voltaire’s experience with arbitrary imprisonment in France as virtually unthinkable in England. See DICEY, supra note 1, at 209–12; see also id. at 135 (describing French constitutional provisions as “not in reality laws,” but as “maxims of political morality,” which derive their strength from the support of public opinion). 4. See Erin F. Delaney, Judiciary Rising: Constitutional Change in the United Kingdom, 108 NW. U. L. REV. 543, 549–53 (2014) (treating Dicey’s work as a leading statement of parliamentary sovereignty and examining changes in British constitutionalism associated with the creation of the Supreme Court of the United Kingdom (UKSC) and the Human Rights Act of 1998); Fabian Duessel, Human Rights in the British Constitution: A Prisoner of History?, 2017 U. ILL. L. REV. 791, 794 (2017) (tracing the rise of European human rights consciousness after World War II and describing the tension between Dicey’s conception of parliamentary sovereignty and Great Britain’s decision to incorporate human rights protections by way of a statute). 5. Compare Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006) (invoking traditions of parliamentary supremacy in questioning judicial review and court- based constitutional enforcement), with Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693 (2008) (defending the political legitimacy of a judicial role in constitutional rights elaboration). 6. See, e.g., ANTHONY KING, THE BRITISH CONSTITUTION 19–23 (2007) (describing Dicey’s place among iconic theorists of the British constitution); Dylan Lino, The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context, 81 MOD. L. REV. 739 (2018); Rivka Weill, Dicey Was Not 740 CALIFORNIA LAW REVIEW [Vol. 107:737 the United States. With its separation of the powers of government and embrace of judicial review, the Constitution of the United States does not subscribe to Dicey’s theory of parliamentary supremacy.7 Over the course of some 230 years of constitutional experience, moreover, the United States has switched from a system of government remediation that relied heavily on the common-law forms to one that features far greater reliance on statutes and constitutional norms.8 To be sure, our constitutional and statutory schemes occasionally incorporate common-law features.9 But in evaluating the legality of federal government action, the courts of the United States now focus less on the common law than on a set of rights specified in written law. What relevance can Dicey’s hymn to the common law have for lapsed common lawyers? Dicey, after all, strikes the modern reader as more relevant to issues of constitutional design
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