“It makes sense to me,” I said, referring to a recent Supreme Court case where the Court ruled that a prisoner in a federal prison couldn’t sue the prison officials, claiming physical abuse at their hands. [1]
Socrates put down his coffee, and asked, “Why does that make sense to you, Jacob.”
“Because Congress hasn’t created a cause of action for such cases,” I replied. “It’s the Separation of Powers. Congress makes the law, the President enforces the law, and the courts interpret the law. If Congress hasn’t passed a law, there’s nothing for the courts to interpret and apply.”
“Well, that creates an absurdity,” Socrates said.
“How so?”
“If the plaintiff in the case you’re referring to had been imprisoned in a state facility, and state prison officials had physically abused him, wouldn’t he have has a viable case then?” [2]
“Sure, assuming that what he is alleging is true.”
“So, why should it be any different simply because he was in a federal prison rather than a state facility?”
“Because, again, the Congress hasn’t passed an applicable law that would cover the situation. On the other hand, it has passed such a law covering state governmental actions. Even if the Court thinks that such a law would be good policy, it can’t make up the law itself.”
“Really? I thought this was a common law country.”
“You mean like the common law of England?”
“Right. Didn’t we adopt their legal system?”
“Well, we don’t have a monarch,” I said, laughing.
“I don’t mean their specific laws. I mean didn’t we adopt their legal system?”
“I’m confused.”
“Doesn’t someone accused of a crime in our country have the right to a trial by jury?”
“Yes.”
“And isn’t that right something that we inherited from England?”
“Okay. Yes.”
“Now courts in our country don’t just rely on statutes in determining what the law is, do they?”
“They don’t?”
“Don’t they also rely on precedent?”
“Yes, I suppose they do.”
“And don’t they call the precedents they rely on ‘caselaw?’”
“You’re right.”
“And the legal system that relies on case precedents is called the ‘common law’ system. Am I right?”
“If you say so.”
“Isn’t it also true that many of our crimes weren’t originally defined by statute, but by caselaw?”
“I didn’t know that.”
“For example, in the State of Michigan, murder isn’t defined by statute but by the common law.” [3]
“Okay, then.”
“Now you realize that the source of common law isn’t statutory law, but caselaw. Don’t you?”
“I’m starting to see that.”
“So, on what basis was the plaintiff suing in the case you were talking about?”
“He said that he was getting beat up by prison personnel.”
“Right. But did he base his cause of action on any particular law?”
“On the Eighth Amendment’s prohibition of cruel and unusual punishments.” [3]
“So, the Court in this case wasn’t even asked to make up a new cause of action. There is already a law in place prohibiting what the prison officials allegedly did.”
“I suppose, if you think of the Constitution as a law in that sense.”
“Well, now, wait a minute. Doesn’t the Constitution specifically state that it is the supreme law of the land?”
“That’s right.”
“So, in what sense is the Constitution not a law?”
“You’ve got me. I don’t know what I meant by that.”
“Now according to the Eighth Amendment we have a right to be free of cruel and unusual punishments, correct?”
“Obviously.”
“And, speaking of the common law, isn’t it a maxim of the common law ‘that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded?’” [4]
“I think I’ve heard of that, yes.”
“So, does it make sense to you that Congress can take away a legal right by simply not providing a remedy for its violation?”
I laughed, and said, “I don’t think Congress has effectively repealed the Eighth Amendment just because it hasn’t provided a remedy for its violation.”
“But what’s the point of a right that doesn’t have a corresponding remedy for its violation? And what about the maxim of law that you’re discarding?” Socrates replied.
“Okay, I think I see what you mean. But wouldn’t the plaintiff in the case we’re talking about have a cause of action under state law for battery?”
“Maybe. But what does that have to do with anything? Do rights under state law cancel out rights under federal law?”
“No, I guess not.”
“Rights without remedies are meaningless, Jacob,” Socrates said.
“Once again, I must acquiesce to your superior wisdom.” I replied.
—Jack Quirk
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