Not all remedies are judicial

The classic legal maxim is “for every [violation of a] right there is a remedy”. But not necessarily a judicial remedy. Providing courts to decide cases is a privilege, not an immunity (right against the exercise of a power of government). The U.S. Constitution only requires one Supreme Court which may consist of only one justice. All else is discretionary. There can be no constitutional right to an adequate portion of a scarce resource, and court dockets are a scarce resource.

Not having a court with jurisdiction to decide a case does not mean one doesn’t have a right. Just not a judicial remedy. One always has the remedy of “self-help“, but since that can lead to violence and civil disorder, the political establishment creates courts to provide people with another alternative.

It was held in Barron v. Baltimore not that the plaintiff didn’t have a right against his state, but that federal courts did not have jurisdiction to provide a remedy, and that if he couldn’t get relief in a state court he was stuck (other than by the alternative of “self-help”, which was not mentioned).

The original design of the Constitution put the burden on the citizens of each state to make sure their state courts provide just relief. It was not their intent to make federal courts the courts of appeal for every state case. When the War of Secession and its aftermath showed that wasn’t working, the 14th Amendment was adopted, but not as a complete solution. The pressure is still on the people of each state to maintain just state courts. It is not the job of government to relieve the people of the burdens of their civic duties to supervise government.

The American Revolution was to replace the monarch with the people as sovereign, but that didn’t change most of the principles of law. It changed who would decide who would administer those principles.

The concept of “scarce resources”. It is not a matter of degree, or the availability of funds. It is a term of art in economics, and refers to any situation in which resources are expended, which may in principle be insufficient in some scenarios. The “rights” recognized as “constitutional” are only those that can protected by government expending no resources, and presumes a situation in which government has no resources.

Now one might argue that protecting the right of due process requires the expenditure of scarce resources, but it can always be protected by the government refraining from prosecuting a case, or providing a court in which a private party can prosecute a case. In other words, it provides that if any resources are provided, enough have to be provided to be fair to all parties. But there is no right to have any at all provided.

The concept of rights doesn’t entail a right to easy redress. Ultimately, one has to be prepared to take up arms and kill or be killed. One has rights without courts, but not if one isn’t willing and able to fight for them.

As a lawyer here in Texas put it, speaking of his fellow lawyers, “We own the courts and we make the rules [for our benefit, not the benefit of the people].” The result is that one gets the judicial administration one is willing to pay for, either by paying a lawyer or getting the legislature to fund it. But most legislative candidates will confirm that the voters don’t make the courts a leading issue. That is what has to change before the situation will improve (and maybe not even then, because of corruption).

Ultimately, the redress available is  not judicial, but political. One has to get one’s fellow citizens to elect the right officials. That won’t help particular cases, but may help similar cases in the future. The problem is that people tend to fixate on their own cases and never get around to working for general solutions.

Government is set up to provide many services, not all of which involve the protection of rights. Constitutional rights are those with respect to government, and are protected by government doing nothing. The problem for public understanding of these matters is the use of the same word for both a right against government action and for a “right” against private parties or impersonal vicissitudes, such as invasion, crime, disease, or accident. Those nongovernmental threats are unlimited. Governmental resources are limited, and therefore scarce by definition. Thus, we can appropriate money for police to investigate crime generally but it would be infeasible to hire bodyguards for every individual.

The annualized cost of something like a courthouse run about $200/sq foot for employee salaries, $20/sq foot for amortization of the cost of the building erection, $1/sq foot for maintenance, and $4/sq foot for utilities like electric power, water, sewage, etc. It will typically require about 1 sq foot for each citizen to be served, so you will see a courthouse for a county of about 20,000 people averaging about 20,000 sq feet, for an annualized cost of $4,500,000, or about $225 in taxes for each  citizen. However, the above estimates do not count the costs of the lawyers and judges, law enforcement officers, vehicles, and buildings, jails, and other facilities. It adds up.

If one does polls of voters one will find few of them put much priority on judicial services. It is just not a prominent issue for most people.

Political remedies are general, not specific. One still wants remedies for particular cases. Moreover, the political remedies  mostly operate through courts. The mistake too many people make is to neglect the political phase and then expect to salvage their neglect in the judicial system. It is much like the way people pay attention to general elections but neglect the nomination or party-building process. There is a general need for people to become involved at an earlier stage in almost everything.


One Response to “Not all remedies are judicial”

  1. slcraignbc Says:

    A Question regarding Remedies in light of the 1st Amendment and the established SCOTUS on “Constitutional Questions” when the Law is “ambiguous” due to the lack of clarity on a “term of words” used in the Constitution and only once by the Congress, incidentally and out of the “specific” context of the Constitutional usage.

    When the Congress has spoken and caused an “ambiguity” and the Executive Branch is barred from speaking due to conflict of interest can the SCOTUS, as the 3rd Branch of the Federal Guv’mnt be approached by a 1st Amendment Petition for REMEDY….????

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