The Right-Remedy Gap in Constitutional Law

Ever since John Marshall insisted that for every violation of a right, there must be a remedy, American constitutionalists have decried the right-remedy gap in constitutional law. Everyone agrees that victims of constitutional violations should have effective redress. At least as an ideal. The distance between the ideal and the real means that there will always be some shortfall between the aspirations called rights and the mechanism's that are called remedies. Richard Fallon and Daniel Meltzer have recast Marbury v. Madison's apparent promise of effective redress for all constitutional violations as a principle, not an ironclad rule, an ideal in practice not always attained. They rank this ideal below the more absolute requirements of a general structure of constitutional remedies adequate to keep government within the bounds of law.