Constitutional Remedies and the Morality of Governmental Action: A Response to Garvey

In his book, What Are Freedoms For?,I John Garvey takes issue with traditional liberal justifications for freedom. In particular, he disputes two assumptions that underlie such justifications. The first assumption is that freedom is about protecting a universal right to make choices because freedom of choice is itself a good thing. The second is that freedom of choice means one choice is as good as another. Garvey rejects both of these assumptions. He argues that the American system is not about the freedom to choose but about the freedom to act. There is, moreover, "no general right to freedom; there are only particular freedoms." These particular freedoms, Garvey argues, allow individuals freely to engage in certain activities-for example, relationships, religion, and speech-not because freedom of choice is good but because the protected activities are good.

The flip-side of Garvey's view of freedom is that it imposes duties on the government not to interfere. These governmental duties, like the freedoms they protect, have a moral component: just as particular freedoms protect people's rights to engage in certain activities because they are highly valued, so it is "bad" for the government to infringe on people's freedom to do those "good" things. This modern view that the government not only lacks the power to interfere with certain activities but also has a duty to avoid doing so is reflected in the Supreme Court's use of such words as "violation" and "wrong" to describe unconstitutional action. The government's duty to respect freedoms, Garvey argues, also provides a justification for "punishing" public officials who violate that obligation by subjecting the offending officials to suits for money damages.'  Finally, Garvey posits that "[i]t is not always wrong for the government to interfere with [protected freedoms]"; it matters whether the government's actions were intentional." The government violates its duty to respect our rights when public officials deliberately restrict those rights. Bad intentions, Garvey concludes, "are a part of what it means to violate the Constitution.' 

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In Part I of this Article, I discuss a number of important constitutional rights that cannot adequately be explained as protecting freedoms to engage in valued activities. In Part II, I raise important issues concerning the relationship between morality and intent in Garvey's account of governmental duties and demonstrate that Garvey's theory of governmental duty is both over- and under-inclusive as applied to constitutional damages law. In Part Im, I propose a refinement of the relationship between morality and intent that takes account of the role of constitutional damages law.