Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable

by Erwin Chemerinsky

Overview

A leading legal scholar explores how the constitutional right to seek justice has been restricted by the Supreme Court

The Supreme Court’s decisions on constitutional rights are well known and much talked about. But individuals who want to defend those rights need something else as well: access to courts that can rule on their complaints. And on matters of access, the Court’s record over the past generation has been almost uniformly hostile to the enforcement of individual citizens’ constitutional rights. The Court has restricted who has standing to sue, expanded the immunity of governments and government workers, limited the kinds of cases the federal courts can hear, and restricted the right of habeas corpus. Closing the Courthouse Door, by the distinguished legal scholar Erwin Chemerinsky, is the first book to show the effect of these decisions: taken together, they add up to a growing limitation on citizens’ ability to defend their rights under the Constitution. Using many stories of people whose rights have been trampled yet who had no legal recourse, Chemerinsky argues that enforcing the Constitution should be the federal courts’ primary purpose, and they should not be barred from considering any constitutional question.

Product Details

ISBN-13:	9780300224900
Publisher:	Yale University Press
Publication date:	01/10/2017
Sold by:	Barnes & Noble
Format:	eBook
Pages:	256
File size:	563 KB

About the Author

Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, with a joint appointment in Political Science.

Table of Contents

Preface ix

1 Why Do We Have Federal Courts? 1

2 Suing the Government: The King Can Do Wrong 20

3 Suing Government Officers 55

4 An Alleged Constitutional Violation Always Should Be Adjudicated 93

5 The Great Writ: How Habeas Corpus Has Been Suspended 137

6 Opening the Federal Courthouse Doors 169

7 Enforcing the Constitution 200

Notes 211

Acknowledgments 243

Index 245

Editorial Reviews

10/24/2016
Supreme Court decisions such as Citizens United, which deal with substantive issues, have understandably garnered the most attention from nonlawyers, but law professor Chemerinsky (The Case Against the Supreme Court) demonstrates here that the Court’s procedural decisions are also vitally important. As he notes, “Court decisions rejecting rights get headlines, while rulings dismissing cases on... procedural grounds garner little attention.” The net effect, however, of such dismissals is to close “the federal courthouse doors to those whose rights have been violated.” The professor immediately makes this plain with the horrifying case of current and former female military personnel prevented from suing over sexual assaults they had suffered while in the service. A federal appellate court ruled that they had no legal remedy, because the U.S. government is completely immune from being sued in the absence of an authorizing statute and the Supreme Court has ruled that “people cannot sue others in the military.” Such examples of the deficient logic behind adherence to doctrines such as sovereign immunity, a relic of English law from the time of Edward I holding that the “King can do no wrong,” make this powerful and impassioned book anything but dry reading. Its cogent analysis is enhanced by practical steps for enabling federal courts to again truly enforce the U.S. Constitution. (Jan.)

Publishers Weekly

"Documents the hostility of the Rehnquist and Roberts courts to the enforcement of citizens’ constitutional rights. . . . Clear, cogent, passionate and persuasive. . . . Awash in examples of disturbing decisions of the Supreme Court."—Glenn C. Altschuler, Huffington Post

"Powerful and impassioned . . . anything but dry reading. Its cogent analysis is enhanced by practical steps for enabling federal courts to again truly enforce the U.S. Constitution."—Publishers Weekly

"Chemerinsky shows how judicial deference undercuts democracy in significant ways. . . . This book is the strongest argument I have seen in favor of judicial power."—Kent Greenfield, author of The Myth of Choice

"Few principles are more basic to constitutional law than the notion that if justice is to have meaning, it must be equally available to all. Yet as Erwin Chemerinsky shows in this compelling and searing indictment, the Supreme Court has erected barrier after barrier to ordinary citizens who seek nothing more than their day in court. This is a must-read for all who wonder why the promise of equal justice under law has been so severely eroded."—David Cole, Georgetown Law, author of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law   

"In this book, Erwin Chemerinsky has eloquently and persuasively articulated his insightful vision of the unique role of the federal courts in our political system. All Americans—especially those sitting on the federal bench—should take heed."—Martin  Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern Pritzker School of Law

"A masterful exposition of how the federal courts are using abstruse and unfounded procedural doctrines, from abstention to standing, to foul away our rights. Not for lawyers only!"—Susan Herman, President, American Civil Liberties Union

From the Publisher

“Documents the hostility of the Rehnquist and Roberts courts to the enforcement of citizens’ constitutional rights. . . . Clear, cogent, passionate and persuasive. . . . Awash in examples of disturbing decisions of the Supreme Court.”  —Glenn C. Altschuler, The Huffington Post

The Huffington Post - Glenn C. Altschuler

“A masterful exposition of how the federal courts are using abstruse and unfounded procedural doctrines, from abstention to standing, to foul away our rights. Not for lawyers only!"—Susan Herman, President, American Civil Liberties Union

Susan Herman

“In this book, Erwin Chemerinsky has eloquently and persuasively articulated his insightful vision of the unique role of the federal courts in our political system. All Americans—especially those sitting on the federal bench—should take heed.”—Martin  Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern Pritzker School of Law

Martin Redish

"Few principles are more basic to constitutional law than the notion that if justice is to have meaning, it must be equally available to all. Yet as Erwin Chemerinsky shows in this compelling and searing indictment, the Supreme Court has erected barrier after barrier to ordinary citizens who seek nothing more than their day in court. This is a must-read for all who wonder why the promise of equal justice under law has been so severely eroded."—David Cole, Georgetown Law, author of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law   

David Cole

“Chemerinsky shows how judicial deference undercuts democracy in significant ways….This book is the strongest argument I have seen in favor of judicial power.”—Kent Greenfield, author of The Myth of Choice

Greenfield

★ 2016-11-02
How conservative majorities in successive Supreme Courts have consistently acted in recent years to block citizens' access to redress of grievances through the courts.Chemerinsky (Law and Political Science/Univ. of California, Irvine School of Law; The Case Against the Supreme Court, 2014, etc.), who is on the National Jurist's list of the "Most Influential People in Legal Education," challenges anyone concerned with particular injustices to step back and examine the bigger picture. He charges that government, at all levels, has been made immune from suits for redress of grievances and wrongs whether brought by individuals or through class action. Throughout, he provides ample casebook evidence to support his arguments. The Supreme Courts chaired by William Rehnquist and John Roberts have both erected significant barriers to citizens attempting to bring suits, effectively turning government at the federal level into a parody of the monarchy it was created to replace. Doctrines of state sovereignty have been rolled out to block access to federal courts and constitutional redress, and judges, prosecutors, police, and prison staff have all been accorded immunity from those seeking redress. These immunities have been maintained in a variety of direct and indirect ways, including procedural maneuvers such as redefining how a plaintiff or plaintiffs can attain standing to proceed. Even the doctrine of habeas corpus has been hollowed out. Otherwise, the excuse of politics has been misused to dump court issues back onto the legislative branch. Furthermore, constitutional appeals have become almost impossible to make, much less win. In Chemerinsky's view, "the effect of the Supreme Court's decisions…is that the Republican Form of Government Clause is essentially read out of the Constitution." Widespread government surveillance is protected, and the court's political majority has eroded individuals' rights, even as it has transformed government. A dramatic challenge to understand the shakiness of the foundations we take for granted and where energies committed to redress should be directed.

Kirkus Reviews