Right To Constitutional Remedies Quotes

Lyons sued the City of Los Angeles for violation of his constitutional rights and sought, as a remedy, a ban against future use of the chokeholds. By the time his case reached the Supreme Court, sixteen people had been killed by police use of the chokehold, twelve of them black men.

If the body politic is constitutionally diseased, as I verily believe; if the disorder inheres in the system; there is no remedy. The fever must burn itself out, and then Nature will do the rest. One does not prescribe what time alone can administer. We have put our criminals and dunces into power; do we suppose they will efface themselves? Will they restore to us the power of governing them? They must have their way and go their length. The natural and immemorial sequence is: tyranny, insurrection, combat. In combat everything that wears a sword has a chance—even the right.

My thesis is that through most of American history, the Court has usually refused to impose constitutional checks on police or to provide adequate remedies for police misconduct. Instead, it has created a series of legal rules that fail to protect citizens’ constitutional rights and that facilitate and even encourage racist policing.

Long years of experience indicated to us that Negroes could achieve this goal when four things occurred: 1. nonviolent demonstrators go into the streets to exercise their constitutional rights; 2. racists resist by unleashing violence against them; 3. Americans of good conscience in the name of decency demand federal intervention and legislation; 4. the administration, under mass pressure, initiates measures of immediate intervention and supports remedial legislation.

So too the race-conscious remedies that the Court has sanctioned or imposed have increased social tensions and distorted key civic institutions. Those liberties that the framers thought so absolute that they enshrined them in the Bill of Rights—freedom of speech, especially political speech, and the protection of private property—became negotiable, with the connivance of a Court established above all to protect those constitutional liberties that it would be tyranny to abridge.

3. Serving Two Masters Derrick Bell has pointed out a third structure that impedes reform, this time in law. To litigate a law-reform case, the lawyer needs a flesh-and-blood client. One might wish to establish the right of poor consumers to rescind a sales contract or to challenge the legal fiction that a school district is desegregated if the authorities have arranged that the makeup of certain schools is half black and half Chicano (as some of them did in the wake of Brown v. Board of Education). Suppose, however, that the client and his or her community do not want the very same remedy that the lawyer does. The lawyer, who may represent a civil rights or public interest organization, may want a sweeping decree that names a new evil and declares it contrary to constitutional principles. He or she may be willing to gamble and risk all. The client, however, may want something different—better schools or more money for the ones in his or her neighborhood.

I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.

After becoming president, Washington personally led a national army into western Pennsylvania to suppress a rebellion against the new federal tax on whiskey. Invoking the spirit of 1776, the “whiskey rebels” had tarred and feathered a federal tax collector, then held protest meetings where they threatened revolution. Washington was furious. In response, he marched with the army to Pennsylvania—the only time in American history a president has served as commander-in-chief in the field. In a subsequent message to Congress, he showed precious little sympathy for insurrectionary “Second Amendment remedies”: [T]o yield to the treasonable fury of so small a portion of the United States, would be to violate the fundamental principle of our constitution, which enjoins that the will of the majority shall prevail. . . . [S]ucceeding intelligence has tended to manifest the necessity of what has been done; it being now confessed by those who were not inclined to exaggerate the ill-conduct of the insurgents, that their malevolence was not pointed merely to a particular law; but that a spirit, inimical to all order, has actuated many of the offenders.

Federalism should not provide state and local governments with the power to ignore the Constitution in any area, least of all in policing. Rizzo v. Goode, followed a short time later by City of Los Angeles v. Lyons, eliminated the power of federal courts to remedy proven patterns of racist, unconstitutional policing.

The antislavery Vermont Republican Charles Rich delivered a full refutation of the slaveholders, and with it a summation of an emerging antislavery constitutionalism.104 Although it pained him to oppose his longtime southern Republican allies, Rich said, he found it impossible to square the first principles of either the Declaration of Independence or the preamble of the Constitution with slavery. Although slavery existed at the nation’s founding, this misfortune hardly necessitated slavery’s continued existence. “By what charter of a national character,” he asked, “[has] a right to hold a human being in slavery … ever been recognised?” The absence of the word “slavery” in the Constitution signaled that, although “for obvious reasons, [the framers] were obliged indirectly to admit the fact of its existence, they purposely, and very carefully, avoided the use of any expressions from which, by fair construction, even an argument could be derived in favor of its legitimacy.” Any justification for slavery would have to be derived “by a reference to the laws of nature and natural rights, and not to the Constitution.” As slavery was strictly an unfortunate local institution, Rich asserted, Americans had an obligation, in accord with the laws of nature and natural rights, to prevent its extension, The Missouri question presented to the nation an irrevocable choice: Hitherto, slavery has not been so recognized by the General Government, as to cause our national character to be materially affected by it; for, although there are States in the Union which, from the necessity of the case, may be termed slave-holding States, it cannot, with truth, be alleged that, as a nation, we have permitted slavery. But if, under present circumstances, Congress shall solemnly decide that it cannot restrain the unlimited extension of it, and that a want of power to do so results from an unqualified recognition of it by the Constitution, our national character will become identified with it; and instead of its being, as heretofore, a local malady, and susceptible of cure, it must henceforth be regarded as affecting the whole system, and past the hope or possibility of a remedy. Rich bade his colleagues and countrymen to join in limiting “an evil which cannot at present be removed” or “diminished by dispersion”—hemming it in and keeping it a local institution “till removed, and our national character thereby preserved.”105

Something happened?” “The German parliament has passed that constitutional amendment they’ve been drafting since the Reichstag fire.” “Oh no!” “Yes. The Law to Remedy the Distress of People and Reich is in force. As of today, Hitler has the power to make laws without passing them through Parliament. March 24 will go down in history as the day German democracy died.” “But how could that happen? Didn’t anyone oppose it?” “They changed the rules of procedure. And there was intimidation. The Communists were all either in jail or in hiding. Opponents were prevented from taking the floor.” “But even after the latest elections, the Nazi party still doesn’t have a majority. Doesn’t it take two-thirds of Parliament to pass a measure like that?” “You’re right. But the Social Democrats were the only party to vote against the act.” “What!” Gerhard nearly choked on his coffee, splattering it on his shirt. “That makes no sense. Why would the other parties go along with it?” “Because of that Reichstag Fire Decree. You know Hitler’s been using it to imprison his enemies, unleash his storm troopers, suspend civil liberties. He’s beaten the other parties into submission. And today they gave up, the cowards.” “I don’t know why I’m so surprised,” Gerhard said. “Two weeks ago, they forced the mayor of Frankfurt to resign. Just like that, after ten years. Landmann completely transformed Frankfurt. To see a progressive like him, the first Jew ever to hold that office, replaced by a filthy Nazi!

remedy. The issue of Europe, he suggested, should be taken out of the hands of governments and parties, and put directly to the people in a referendum. Such a vote would be constitutionally new, but then so was signing away power to a European body. It could be justified on the grounds that the issue affected the rights of every citizen. From Labour’s point of view, there was the advantage that it would make it possible for non-partisan front-benchers to avoid any outright personal commitment, or contradiction of earlier positions – without loss of face.

In the programs and statements of these parties one hears echoes of classical fascist themes: fears of decadence and decline; assertion of national and cultural identity; a threat by unassimilable foreigners to national identity and good social order; and the need for greater authority to deal with these problems. Even though some of the European radical Right parties have full authoritarian-nationalist programs (such as the Belgian Vlaams Blok’s “seventy points” and Le Pen’s “Three Hundred Measures for French Revival” of 1993), most of them are perceived as single-issue movements devoted to sending unwanted immigrants home and cracking down on immigrant delinquency, and that is why most of their voters chose them. Other classical fascist themes, however, are missing from the programmatic statements of the most successful postwar European radical Right parties. The element most totally absent is classical fascism’s attack on the liberty of the market and economic individualism, to be remedied by corporatism and regulated markets. In a continental Europe where state economic intervention is the norm, the radical Right has been largely committed to reducing it and letting the market decide. Another element of classical fascist programs mostly missing from the postwar European radical Right is a fundamental attack on democratic constitutions and the rule of law. None of the more successful European far Right parties now proposes to replace democracy by a single-party dictatorship. At most they advocate a stronger executive, less inhibited forces of order, and the replacement of stale traditional parties with a fresh, pure national movement. They leave to the skinheads open expressions of the beauty of violence and murderous racial hatred. The successful radical Right parties wish to avoid public association with them, although they may quietly share overlapping membership with some ultraright action squads and tolerate a certain amount of overheated language praising violent action among their student branches. No western European radical Right movement or party now proposes national expansion by war—a defining aim for Hitler and Mussolini. Indeed the advocates of border changes in postwar Europe have mostly been secessionist rather than expansionist, such as the Vlaams Blok in Belgium and (for a time) Umberto Bossi’s secessionist Northern League (Lega Nord) in northern Italy. The principal exceptions have been the expansionist Balkan nationalisms that sought to create Greater Serbia, Greater Croatia, and Greater Albania.

Adolph Lyons’s attempt to ban the use of lethal chokeholds by the Los Angeles Police Department (LAPD) is a good example. Lyons, a twenty-four-year-old black man, was driving his car in Los Angeles one morning when he was pulled over by four police officers for a burned-out taillight. With guns drawn, police ordered Lyons out of his car. He obeyed. The officers told him to face the car, spread his legs, and put his hands on his head. Again, Lyons did as he was told. After the officers completed a pat-down, Lyons dropped his hands, prompting an officer to slam Lyons’s hands back on his head. When Lyons complained that the car keys he was holding were causing him pain, the officer forced Lyons into a chokehold. He lost consciousness and collapsed. When he awoke, “he was spitting up blood and dirt, had urinated and defecated, and had suffered permanent damage to his larynx.”91 The officers issued a traffic ticket for the burned-out taillight and released him. Lyons sued the City of Los Angeles for violation of his constitutional rights and sought, as a remedy, a ban against future use of the chokeholds. By the time his case reached the Supreme Court, sixteen people had been killed by police use of the chokehold, twelve of them black men. The Supreme Court dismissed the case, however, ruling that Lyons lacked “standing” to seek an injunction against the deadly practice. In order to have standing, the Court reasoned, Lyons would have to show that he was highly likely to be subject to a chokehold again.