Accountability For Constitutional Violations Likely Has To Start With The Trivial

There is a long and sordid history of faithlessness to the guarantees enumerated in the U.S. Constitution. After all, judicial review did not exist until 1803, and popular will could therefore effectually overrule, or at least incredibly frustrate, any Constitutional guarantee from the start. Yet, common fidelity existed enough to expand Constitutional guarantees to the states, as a direct consequence of a rebellion by some. After civil war, our country’s highest court refused to uphold the newly expanded Constitution, only for some of course, for nearly a century. Today many continue to make a persuasive case to many, that our courts are still failing.

But back to the positive for a moment. Wherever the expansion of Constitutional rights has occurred, with full legal force, it has identifiably resulted in a universally positive impact on American society. Nowhere is that fact more evident than with the expansion of First Amendment religious liberty and moral/social tolerance. Prior to the expansion of the First Amendment to the states, religious minorities were widely discriminated against by state governments. The state-sponsored discrimination was not due to religious minorities being denied the benefits of established state churches, as some have erroneously suggested, but rather by state support of religion at all, even in neutral form. In any case, the fact that states can no longer legally discriminate against religious minorities in the ways done before is a positive development of Constitutional expansion.

Despite the expansion, enforcement of the Constitution today, as it always has before, faces significant hurdles. Court-created immunities for government actors have resulted in a system that leaves citizens, in the words of a federal judge, “violated but not vindicated.” It just so happens, however, that Clark Neily, a Cato Institute scholar, has proposed a novel solution that is generating substantial praise in the field of constitutional law.

Neily’s proposal can be summed up as simply combining “two utterly commonplace features of our existing system: traffic tickets and small claims court.” Imagine, Neily argues, a system where citizens can report constitutional violations as with any small claims court, that can include methods of introducing “any documentation you might have, including a recording of the incident.” The punishment in many cases need only be slight, a minor fine, again as with any traffic court, and made without any admission of liability by the government or its actors. Of course, application of Neily’s proposal would likely mean that only trivial or minor constitutional offenses would stand the chance of being redeemed, and the more serious offenses would be left unaddressed.

Strong evidence exists, however, that gradual, incremental steps in the direction of human rights is a powerful engine for positive change and human flourishing. Rather refreshingly, that evidence is taken into account in Neily’s constitutional small claims court proposal, as is the recognition that harsh punitive responses to violators, even where just, are self-defeating. Instead, Neily argues the system should harness the power of incentive in order to address minor constitutional harms, I’ll let him explain it from here:

“We provide a kind of bonus, equivalent to, say, ten percent of an officer’s current salary, and we put it in escrow at the beginning of the year […] And it is from that escrow account that awards against the officer in constitutional small claims court would be drawn. Thus, good officers who generate few if any meritorious claims in a given year will receive a nice bonus in the form of a substantially fully funded escrow account; but officers who generate lots of meritorious claims will receive little if any bonus and may even have to go into their own pockets if the money in their escrow account runs out before the end of the year.”

Although Neily focuses his proposal on police officers, it could be applied to every government actor. Although the benefits might appear slight, I can attest from experience than even relatively minor or trivial deprivations of Constitutional guarantees can have a profoundly negative impact on citizens and that correcting, or at least acknowledging the violation can be equally profound positive effect.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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