Implementing the Rule of Law: The Role of Citizen Plaintiffs

Civil Rights Litigation and the Rule of Law

Appeals to the "rule of law" today encompass many different aims - from the establishment of stable markets, to the enforcement of criminal laws and the protection of substantive human rights.¹ Over the past decade, the United States has supported a number of new programs designed to promote these rule of law objectives, in order to assist countries along a path of advancement that is assumed to end with the achievement of policies matching the American polity's mature expression of the rule of law.² Because the rule of law is thought ultimately to require the protection of basic civil and political rights, one cannot help but observe an irony in the fact that the United States has - during this same period - increasingly failed to practice what it preaches.

One can, to be sure, find recent court opinions endorsing expansive definitions of some constitutional rights,³ but less attention has been paid to developments hindering the effective protection of those rights. In his recent work, Mark Graber has urged scholars to bridge the divide between the fields of constitutional law and constitutional politics in order to address these enforcement issues:

The question at the heart of a liberal democratic constitutional order is, How (and how well) does this constitution protect fundamental rights? The question is not simply, What rights does this constitution protect? The first question incorporates the second. We cannot evaluate how well a constitution protects fundamental rights until we know what rights that constitution was designed to protect. Still, the questions of constitutional law do not exhaust the constitutional analysis. Constitutionalists must identify and assess those constitutional mechanisms responsible for realizing rights. Placing a right in the text of the constitution does not necessarily increase the probability the right will be protected.⁴

Much of constitutional theory offers a narrow view of the required mechanisms. This essay seeks to shift the focus away from the traditional emphasis on theories of judicial decision-making and the role of judicial review, in order to highlight another mechanism for implementing the rule of law: citizen lawsuits against the state.

Alternative approaches to implementing the rule of law, such as theories focusing on inter-branch checks and balances, seem inadequate to protect citizens from the kinds of abuses of power now more likely to occur after the rise of the Positive State.⁵ In contemporary constitutional democracies, additional "auxiliary precautions" are required.⁶ To an extent that is unprecedented in our history, citizens interact more often with, and depend more upon, government officials. Constitutional harms are inflicted every day by government officials misusing the authority granted to them under legislation that is itself constitutional. Judicial review as a mechanism for securing constitutional rights is irrelevant in such cases.

These additional auxiliary precautions only became available in 1961, with the Supreme Court's ruling in Monroe v. Pape.⁷ The Monroe Court introduced "one of the great innovations of modern American law"⁸ when it permitted citizens to file lawsuits against government officials whose unauthorized actions violated the Constitution. Constitutional tort litigation has since become an important method of implementing the rule of law.⁹ But it is also a method that has generated much criticism. In what follows, I describe the growth of opposition to citizen suits against the state, and explain why these developments are so troubling.

The Role of Citizen Plaintiffs

Do Citizen Plaintiffs Deserve Our Respect?

Citizen plaintiffs and their lawyers are today confronting alarming levels of hostility.¹⁰ In the past, celebratory praise was offered to citizens who had "the courage of their convictions"¹¹ to seek justice in the court system and vindicate the rights of all their fellow citizens. Today, far more skeptical views about their role abound.

The problem is that these impressions appear to be influenced largely by popular anecdotes about frivolous cases that are cited over and over again by opponents of litigation. This type of rhetorical attack was used to great effect during the years leading up to the Prison Litigation Reform Act of 1995.^12...