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The more I read about qualified immunity stories, the more I feel like it is demonstrating that the Constitution is a far weaker legal backstop than the zealous patriotism about it would lead you to believe.

Because in between a government sanctioned wrongdoing and a ruling of “that was unconstitutional” someone is irreparably harmed. And with QI there’s no feedback loop to discourage it from happening again.

Not that the Constitution doesn’t have effects. Obviously it does. But it isn’t this magical aegis… at least not if you’re not rich.



The rather absolute & uncritical application of qualified immunity does seem like a persistent problem, but that's an issue of implementation, not of the original design document.

The Constitution is only strong if the implementation holds it to be.


The Constitution was meant to give people rights and protections and it was clear in many places "should not infringe". Then people of all political colors started to walk the slippery slope of "we don not infringe, we regulate", eating away the Constitution meaning. Most US citizens that I know (only a few hundreds, but that gives a reasonable sample size) agree with most of these "regulations", about half of them even want to remove parts of the rights in the Constitution, so the protection that it provides is eroding every single day. Put on top of that invented concepts that don't exist in any law like qualified immunity and you are half on that slippery slope, building speed downwards.

For a long time I had an envy for US to have so clear rights by their Constitution. Boy, I was naive to believe they still exist. Context info: I was born and lived in Communist Eastern Europe, in my country there is practically no right by Constitution but to pay taxes.


The document itself is useless unless there is a mechanism to enforce laws which encroach upon it’s central tenets. We have that, the judiciary, but on the whole they completely abdicate their responsibility to strike down affronting laws.


The problem is that the judiciary is a timid institution by nature, because the Constitution actually says very little about it. All the courts lower than the Supreme Court are established by Congress in federal law versus the Constitution, and most of the Supreme Court's powers are implied and not explicitly defined in the Constitution, like their power to do judicial review for constitutionality. Even what is said about the Supreme Court is very vague; what it actually looks like is also at the discretion of Congress.

Given that they derive most of their power from Congress's discretion, and on top of that are not elected officials, they use their power sparingly, because it is supposed to be Congress's job to legislate.


It's worth noting that the constitution itself doesn't provide that mechanism - the judiciary created it for itself, but relies on the cooperation of the other branches for its judgments to be effective.


Agreed on that, but I think it was the very first case before the supreme court in which they declared their central role to be to decide "what the law is" or some similar statement. Even though it's not constitutionally defined, like all old, atrophying organizations, inertia basically guarantees survival.




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