I thought the Constitution was a document that restrained the government — including Congress — from assuming or wielding powers that don’t follow its rules. That is, I thought that when our founding document said that we had the right to free speech, to be free from unreasonable search and seizure, to bear arms, or any of that stuff, that we have that right whether Congress likes it or not. To me, it seems that anything less reduces the Constitution to the status of an ordinary federal statute that may be amended on the whims of the party presently in power. And, for obvious reasons, this is bad: who wants the party that just got 51% of the vote to be able to decide what speech should be free, what policing is reasonable, etc., etc., without some ironclad boundaries that cannot be modified without an extreme supermajority of demand? Whether you are R or D or neither or whatever, this is bad, because no matter how much you like who may be in power now, it will change like the wind, but our rights… they should not.
A court precedent created 45 years ago in a case called Bivens v. Six Unknown Named Agents supported my feelings on the matter. In Bivens, some federal drug cops conducted a grossly unconstitutional search of a man, who sued saying that if the 4th Amendment has any meaning, the courts will have to create some kind of remedy when the amendment is violated by the government. The U.S. Supreme Court agreed and gave him a money judgment. All was well for 45 years (err, not really, but at least there was some check on abusive federal agents…)
Yesterday, the U.S. Supreme Court decided Egbert v. Boule. Mr. Boule is an innkeeper on the U.S. side of the border with Canada, and Mr. Egbert is a border patrol officer who beat up Boule and then filed a bunch of false reports with various federal agencies accusing Boule of crimes. (Or, at least, that’s Boule’s story and the court assumed it to be true for the purposes of this decision.) Boule sued Egbert for violation of his 1st and 4th Amendment rights under the Bivens precedent. The court did not disagree that Boule’s story, if true, constituted a violation of his rights. Perhaps even more preposterously, the court simply ruled that until Congress passes a law allowing for money judgments against federal officers, it would not be allowing any more money judgments against federal officers for constitutional violations under almost any circumstance. You can still sue federal officers when their conduct amounts to a violation of state tort law, sometimes, so many false arrests, excessive force, and other claims are still available, but for constitutional claims that do not have a corresponding state law tort (e.g., most freedom of speech or religion claims, retaliation claims, unlawful searches without physical contact with your body, etc.), federal officers can now violate your rights with impunity.
“Where there is a right, there is a remedy” is not only common sense (what good is a right if you cannot enforce it?) but has been the law in this country for nearly 200 years. The Supreme Court trashed that today, and without getting unduly political, Trump’s 3 appointees are the reason the court swung that way. I don’t know what branch of “originalism” or corner of The Federalist Society counsels such a disastrous decision, but respect for the Constitution and civil rights is not part of those ethos. Selecting justices for political motives, rather than their qualifications, is a mistake (whether you like the former prez and his politics or not), and now we all pay the price.