Make it easy to protect your rights
You shouldn’t need permission to reclaim your liberties from the same people who took them in the first place
When the government violates your constitutional rights, you should be able to sue to stop them. On that, pretty much everyone agrees. It is shocking to find out that it really isn’t so simple.
As a lawyer who regularly represents people whose rights have been shredded, the hardest part is when that hits home for someone. Your client, a good U.S. citizen will see its own government argue there’s nothing anyone can do about it when they violated her rights. Invariably, government lawyers will argue that, regardless of its conduct, the victim can’t demand a remedy through the courts. Typically, they argue that you can only sue the government when the government grants you permission.
The confidence we all have that there is a theoretical way to address a rights violation is, I am sad to say, wildly misplaced.
I once represented a Tennessee lady who simply wanted to shampoo hair at a friend’s beauty salon without a license. (Yes, unlicensed shampooing was once a crime.) When she tried to protect her rights in court, the state claimed that because it had not given her permission to do so, she couldn’t come to court. In other words, the state was free to violate her rights and leave her without a way of redressing it. Until and unless the government grants you leave to protect your rights from the government, you can’t.
Talk about turning a right into a parchment promise. North Korea’s Constitution promises its citizens freedom of speech (as well as a right to free medical care, education, and a “right to relaxation.”). It is utterly pointless if you must count on the government to protect the right that the government is violating.
That’s not the only example. Nashville once passed a law that required individuals building homes to sell a certain number of them at below-market value. A state law directly prohibited cities from requirements like these, but Nashville did it anyway. Then we sued. Nashville said that cities acting illegally is not a basis for anyone to bring a legal challenge. Similarly, after Nashville chased off a gun show from Nashville fairgrounds, the city again argued that it could even violate its own city charter, but you can’t sue them over it. In another case, Tennessee was sued over a flagrantly unconstitutionally law that criminalized “false” statements about officials when a watchdog group said a senator had “cauliflower for brains.” And the state claimed that the possibility of criminal prosecution was an insufficient justification to come to court.
I can’t think of any other way to say it—this is un-American. In America, we understand that rights preexist government. Governments are formed to protect those rights, not grant them. The idea that you can only assert your rights in court when the government says so is anathema to our most basic principles of Americans being sovereigns over their own government.
Our nation’s history rests upon asserting our rights. We felt so strongly that no lawful government could engage in a conspiracy to violate our rights that we got rid of that government by force and started a new one. We are founded on the idea that governments can be stopped when they intrude on our rights. One would think it preferable to settle things in courts before resorting to other means. That’s certainly what the Founders expected. Federalist 78 explains, “the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.” When legislators transgress—as they are so often inclined—courts were supposed to call out any law that is “contrary to the manifest tenor of the Constitution.” It was there right from the start.
We are founded on the idea that governments can be stopped when they intrude on our rights.
It would be wonderful if judges started giving more serious thought to ensuring access to courts. Until they do though, legislatures and state policy groups can make a real difference. They can enact statutes designed to ensure easy access to the courts for persons who suffer a rights violation. That way we can just cut through all the clutter and don’t have to count on judges doing the right thing. And it amounts to nothing more than attaching an “and we really mean it” clause onto the Constitution.
Idea: Any state can enact a clear law that says anyone can sue when the government acts illegally.
Tennessee did exactly that in 2018. Assisted by the Beacon Center, the state enacted a very simple and straightforward law. It provides that any affected person can sue the government when it does something illegal or unconstitutional. The only limit is they can’t ask for monetary damages. This doesn’t sound like much. Most people already think (erroneously) that you can do this.
This law had a tremendous impact. Now citizens can bring their cases and the government must defend their actions rather than faulting the victim.
Let me also point out that this is a neutral tool. Neither political party holds a monopoly on violating the Constitution. We all want access to the courts when laws are harmful. Everyone (except for bureaucrats) believes in accessing the courts when rights are violated.
When the Tennessee law went into effect, government lawyers attempted to undermine it, even calling its very lawfulness into question. In a recent case, the Tennessee Bureau of Investigation refused to honor a judge’s order to expunge some guy’s record. Naturally, the guy sued. Naturally, he argued it is illegal to ignore a judge’s ruling and thus, he could rely on the new Tennessee law. But the state argued the new law—which directly said you can sue the government for acting illegally—did not mean you could sue the TBI for acting illegally. It failed before the Tennessee Supreme Court, but it is alarming they would even make this argument.
Now citizens have a clean and easy way to protect their rights, at least in Tennessee.
Won’t laws like this open the floodgates? No. The way Tennessee structured it was that you can’t use the law if you seek money. People file nuisance lawsuits to get rich, not get a piece of paper that tells the government, “Stop.” And there are plenty of ways to shut down and penalize frivolous lawsuits. This is not a new problem no one has thought about before.
This is America. We defend our rights. We don’t need permission.
Braden Boucek is the director of litigation for Southeastern Legal Foundation.
