Most Americans take it for granted that if our constitutional rights are ever violated — whether by local officials, by our state or by the federal government — we’d be entitled to some form of redress.
Local law enforcement officers unlawfully stop and search our car? We should be able to sue them for damages. Our hometown adopts unreasonable limits on public speech? We should be able to get its ordinance enjoined. The federal government takes our property without good cause? We should be able to get compensation.
Otherwise, not only would these unconstitutional actions go unremedied, but there’d also be nothing to deter the same actors from taking unconstitutional actions in the future.
S.B. 8 is only one part of a much larger story about constitutional rights.
It turns out this assumption is a fallacy. It’s actually incredibly difficult to enforce our constitutional rights — and getting harder by the day.
Although the ongoing controversy over Senate Bill 8, Texas’ controversial new abortion law, provides a powerful example of how even intentional and transparent violations of clearly established constitutional rights can go unredressed, it’s only one part of a much larger story. Thanks to a series of doctrinal developments spearheaded by the Supreme Court, and a woefully inadequate response from Congress and state legislatures, it is as difficult today for Americans to vindicate their constitutional rights as it has been at any point in the country’s history. Worst of all, it may only get harder.
Let’s start at the beginning. For most of the country’s first century, the Constitution’s individual rights applied only to the federal government, not the states. And those rights were enforced in one of two ways: through civil suits seeking damages against the offending officer (suits that usually came from state rather than federal law) or as defenses to federal enforcement proceedings (such as a criminal prosecutions).
The ratification of the 14th Amendment in 1868 opened the door to application of the Bill of Rights to the states as well, and Congress followed suit in 1871 by broadly authorizing suits against state officers for constitutional violations — a statute that’s still on the books today.
Following Congress’ lead, the Supreme Court slowly but gradually made it easier to enforce constitutional rights — especially in a series of rulings in the late 1800s and early 1900s that opened the door to suits for injunctions — to block government officers from ongoing violations of federal rights. In the 1930s and 1940s, the Supreme Court also made it easier for state and federal prisoners to vindicate their constitutional rights in federal courts, expanding the scope of the “Great Writ” of habeas corpus to allow for collateral challenges to state and federal criminal convictions.
It’s actually incredibly difficult to enforce our constitutional rights — and getting harder by the day.
Through World War II and into the 1970s, the courts and Congress continued to find more and more ways to allow the Constitution to function not only as a shield from coercive government enforcement actions, but as a sword to attack unconstitutional government conduct of all shapes and sizes.
Starting in the mid-1970s, though, the Supreme Court began to reverse course. At roughly the same time, the court: No. 1, significantly expanded the scope of government officers’ immunity from suits for constitutional violations; No. 2, dramatically narrowed the circumstances in which federal officers could be sued for constitutional violations; No. 3, began to recognize novel limits on the federal courts’ power to enjoin unconstitutional state policies; and No. 4, made it far more difficult for state and federal prisoners to show their criminal convictions were infected with constitutional errors.
None of these developments was in response to intervening legislation; these doctrinal retrenchments were entirely judge-made.
Even after Congress joined the party in 1996, passing a series of statutes dramatically curtailing judicial review in immigration and post-conviction cases and other suits by state and federal prisoners, the Supreme Court continued to recognize new procedural obstacles to reaching the merits of constitutional claims, further narrowing the ability to sue federal officers for damages for constitutional violations; further narrowing the ability to seek injunctions against state officers; and so on. Critically, none of these decisions changed the underlying meaning of our constitutional rights. The court did not overrule the right against self-incrimination recognized in Miranda v. Arizona. It did not overrule the right to the appointment of counsel recognized in Gideon v. Wainwright. It has not (yet) overruled the right to a pre-viability abortion recognized in Roe v. Wade. It simply found ways of making these rights — and others — harder and harder to vindicate in court. It’s the procedural side of the bill that is even more galling, for it gleefully capitalizes on all of these Supreme Court decisions to make the abortion ban devilishly hard to challenge in court. It’s against that backdrop that the contretemps over Texas’ abortion bill come into such sharp focus. Yes, the bill bans virtually all abortions after the sixth week of pregnancy in blatant defiance of Roe and Planned Parenthood v. Casey. But it’s the procedural side of the bill that is even more galling, for it gleefully capitalizes on all of these Supreme Court decisions to make the abortion ban devilishly hard to challenge in court. The law strips Texas women of their right to obtain an abortion as of the sixth week of pregnancy, but that ban is effective only because it capitalizes on how hard the Supreme Court has made it for those women (or others) to vindicate their rights in court. As Cornell Law School professor Michael Dorf put it so eloquently in a blog post title Tuesday, “Texas Could Not Get Away With This Absent SCOTUS-Created Limits On Constitutional Adjudication.” What’s more, the court may soon make it even harder; a pending petition for a writ of certiorari from one of the most prominent members of the Supreme Court bar directly asks the court to close the door on damages suits against federal officers who violate the Constitution. In that respect, the Texas abortion bill is merely the latest symptom of a chronic — and increasingly serious — disease. The good news, such as it is, is that Congress (and state legislatures) can fix much of this. Just as Congress did back in 1871 with regard to state officers, Congress can make it far easier to sue federal officers who violate the Constitution — and state legislatures can, if they so desire, take at least some steps in the same direction. Of course, they shouldn’t have to; the whole point of constitutional rights is to serve as a check on democratic majorities. But democratic majorities are also meant to serve as a check on the courts. And every day brings new examples of why such checks are increasingly necessary.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
