A Reaffirmation of Rights, Structure, and Remediation
In a recent volume of the Yale Law Journal, Don R. Willett and I explored the relationship between individual liberty and governmental structure in our review of Aziz Huq’s book The Collapse of Constitutional Remedies. Huq’s thesis is that the federal judiciary’s design is fundamentally flawed—and that, as a result, courts today are ill-disposed to furnishing remedies for unconstitutional violence yet overly solicitous of constitutional challenges to government regulation. This judicial double standard, Huq argues, exacerbates societal inequities. Our review’s evaluation of Collapse was partially positive but mostly critical. We argued that, while Huq’s indictment of modern constitutional jurisprudence was sound in some respects, it was overstated or mistaken in many others. We complemented our discussion of Collapse by laying out our own account—both normative and descriptive—of constitutional structure, personal liberty, and the judicial role.
Huq has since replied to our review. His reply objects to our criticism of Collapse on various grounds. None, in my view, are well founded. Nor is Huq’s attempt to rehabilitate Collapse particularly convincing. This piece is my attempt to set the record straight—and to elaborate upon the review’s exploration of the relationship between constitutional structure, the courts, and individual liberty.
Cite as: Aaron Gordon, A Reaffirmation of Rights, Structure, and Remediation, 18 N.Y.U. J.L. & Liberty 238 (2024).