The Collapse of Constitutional Remedies
By Aziz A. Huq.
Oxford University Press, 2021.
Hardcover, 192 pages, $32.99.
Reviewed by Glen Sproviero.
Aziz Huq’s The Collapse of Constitutional Remedies is an elegantly written, yet deeply flawed examination of American constitutional law and the federal courts. Although premised on a skewed vision of social justice and structured to avoid important questions about the core duties of the judiciary, Huq raises a worthy topic that deserves a broader and more well-balanced study than what he has provided.
Huq’s controversial thesis is a broadside—namely, that the Framer’s design of Article III of the United States Constitution is structurally unsound, providing the federal judiciary with substantial latitude to address questions involving federalism and the separation of powers, while willfully ignoring individual claims of violence suffered by plaintiffs at the hands of the state. Given Article III’s centrality to the interpretation and enforcement of federal law, this is a serious charge.
To support his claim, Huq argues that federal courts favor corporate interests to the detriment of individuals, many of whom ostensibly belong to supposed marginalized populations. He further asserts that intense focus on questions surrounding the scope of government authority have negative consequences in that they exhaust judicial resources, leaving individual plaintiffs without recourse to a substantive hearing because courts are preoccupied with questions favorable to groups they prefer. In essence, Huq accuses federal courts of using jurisdictional doctrines to avoid adjudicating the claims of individuals against government entities.
To the extent Huq’s premise is true, these are reasonable questions that deserve serious thought. Yet Huq provides little evidence that it is, and he squanders the opportunity to engage these subjects directly, instead embarking on an all-too-familiar ideological journey that blames institutional biases and supposed structural failures to dodge inconvenient facts.
Huq’s remedy? A radical plan to achieve what he calls “redistributive goals,” which would have Congress use its legislative power to strip the judiciary of jurisdiction to address constitutional protections with which he disagrees.
Here he willingly succumbs to the fashionable hyperbole that the Constitution is simply the flawed product of a bygone era. The central weakness in Huq’s book is that he overstates his case, and by doing so, discredits some of the more reasonable aspects of his argument. He begins with the observation that the Constitution contains numerous rights that are not self-enforcing—“[w]ithout a remedy, a right has no practical value.” While this point is uncontroversial, he quickly pivots to his speculative thesis that “[r]emedies are not doled out in an evenhanded way.”
To illustrate his point, Huq contrasts two matters recently decided by the U.S. Supreme Court, Seila Law LLC v. Consumer Financial Protection Bureau and Baxter v. Bracey.
In Seila, the Court sided with a small California law firm’s argument that restrictions on the president’s authority to remove the director of the Consumer Protection Financial Bureau (CPFB) violated the separation of powers doctrine. The Court looked to the structural authority provided to Congress and the President by the Constitution to determine whether the restriction violated a fundamental constitutional principle. The Court’s decision to hear the case acknowledged its role as a guardian of the balance of powers and its obligation to hear cases that have a substantial effect on the working structure of the government. A refusal to hear such a case could allow the perpetuation of government overreach in a way that not only affects individual citizens but works to the detriment of the entire operation of the government itself, ultimately rendering the system ineffective and unsound.
In contrast, the Baxter Court relied on the doctrine of qualified immunity to reject plaintiff Alexander Baxter’s petition to reverse a decision of the Sixth Circuit Court of Appeals, which prevented Baxter from even bringing a case against police officers who unleashed a dog on him during an arrest. Lower courts had ruled that the case should be dismissed based on qualified immunity because it did not meet a heightened threshold for trial. Qualified immunity is understandably controversial because it shields police and other public officials from liability unless they violate “clearly established” constitutional rights. In most circumstances, it protects public officials unless they knowingly violate the law to the detriment of another citizen.
But in Baxter, the issue before the Court was much narrower in that the decision as to whether there was even a triable case as a matter of law did not affect the structure of the government itself but was restricted to the interests of an individual plaintiff. Baxter is one of thousands of cases involving individual plaintiffs, each of them important, but nonetheless generic in that the issues of law have already been determined, and it is arguably impractical to have each of them heard by the Supreme Court each time a litigant disagrees with lower court decisions. This is why lower courts must exercise careful diligence and get individual cases right, reserving the appellate process for the most important and precedent setting matters, including those of first impression or involving key policy issues.
Huq uses both cases to argue that federal courts favor corporate over individual interests, but he misses the larger point that the Seila matter had far reaching constitutional implications and involved sophisticated questions about the separation of powers. In the former matter, a corporate interest prevailed on the substantive merits of its argument and had its day in Court, while in the latter, a homeless individual who allegedly suffered physical violence at the hands of state officials had his matter dismissed without any substantive hearing because qualified immunity shielded the offending officers from liability. But is there more lurking behind this compelling juxtaposition?
From an ideological perspective, Huq is on a mission. He views the Constitution as a deeply flawed legal instrument and seems eager to supplant it with a sentimental social justice program of his own design. While he does not and cannot exactly pinpoint how he would do so, he does go to great depths to ensure that his readers cannot fail to miss his point that the Constitution is structurally unsound and has led to the development of a judiciary that fails to uphold basic standards of justice.
In contrasting Seila and Baxter, Huq sees a pattern of injustice where those who “bridle against government regulation tend to have an easy glide path into federal court,” while those who contend that individual rights have been violated find the courts “less hospitable.” He asks meaningful questions about the nature of justice and whether the Constitution supports a just society, yet he subordinates the procedural and structural elements of the Constitution, which give it a backbone and endow it with its strength, to ideological notions of fairness, equity, and cherry-picked rights. He misses the irony in that the very qualities he claims to champion are lost in any system that fails to adhere to procedural norms, including those which set limits to remedies by those acting on behalf of the government.
While Huq speaks with a strong narrative voice, his arguments lack compelling evidence and often fail to address both fundamental constitutional questions and the predicates to the wrongs he claims are central to the “collapse” he sees around him. He sees the structure of American constitutionalism as the key to its own demise, but nonetheless advocates an expanded role for the judge in augmenting the abilities of plaintiffs to seek damages against the state. Ironically, Huq criticizes the judiciary for installing “itself as guardian of the structural constitution,” while arguing that those same courts should exercise their power to expand individual constitutional remedies. Hug argues that federal courts should be restricted when it comes to limiting their own procedural and structural powers that benefit “firms trying to avoid regulatory mandates,” but he somehow believes that those very courts should be unfettered from any jurisdictional limits that could prevent certain litigants from having their cases heard on the merits.
But Huq’s insistence that federal courts declare for themselves unlimited ability to hear civil rights actions is not based solely on any misunderstanding of the role of federal courts or the nature of the constitution. Rather, it is driven by an assertion of his personal preferences and an illustration of his distaste for the nature of American constitutionalism itself. In his own words, we’re essentially “stuck with [Alexander] Hamilton’s failed presuppositions.” To Huq, the structural weaknesses of the constitution are not easily remedied and are “hardwired into clear constitutional text.”
If the failures are hardwired into the “constitutional text” itself, how does he expect judges whose obligation it is to uphold the Constitution to fix those supposed errors without a radical departure from their oaths? Should judges radically depart from the structural constraints of the Constitution and pronounce judgments untethered to its text? Should they abandon the Constitution altogether, or at least those parts Huq finds inadequate or objectionable?
In a sense, Huq must embrace these concepts if his thesis is to remain intact. While he assails critics of judicial activism who uphold the structural limitations of the Constitution as contributors to racism and other social injustices, he encourages the augmentation of jurisdictional reach without any textual basis to support his own preferences. He extols the virtue of the power of federal courts when they reach his preferred conclusions, but never fails to criticize that same power when those preferences fail to materialize. Courts are at once too activist when they uphold structural and procedural order embedded in the Constitution and statutes, but not activist enough when they deny litigants damages based on jurisdictional issues.
It is in the final pages that Huq’s veneer of reflective sophistication gives way to raw cynicism: “[i]nstead of thinking about federal courts as primarily bastions of the rule of law, therefore, we should start to see them as what they are: instruments for the redistribution of the valuable quasi-public goods of constitutionality and legality.” He would see courts turn from their mission of protecting the Constitution into blunt political instruments, driven by hostility for assumed inequities and structural hierarchies. He blames the “structural biases of the Senate and the Electoral College” for perpetuating these supposed structural flaws of the judiciary and would—if they could be overcome—“enact new statutes that press the courts to have a more deliberate service in favor of inclusion, dignity, and popular voice.” He clearly prefers the voice of the mob to the order ensconced by procedure, precedent, and the deliberative nature of republican government.
Notwithstanding these criticisms, Huq raises questions that we should all be asking. Can we expand access to federal courts for litigants seeking redress against the state? To what degree do courts have the constitutional authority to restrict access through qualified immunity? Should the concept of qualified immunity, a scourge to progressives and a questionable Constitutional doctrine to originalists, be revisited, but from a different angle?
The problem for Huq is that many of his answers are tainted by his own unsupported preferences and premised on factually questionable assumptions.
Glen Sproviero is an attorney in New Jersey and a former federal law clerk. He was recently appointed as president of Educational Reviewer, Inc.
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