Abstract

If someone who breaks a rule can be confident they will suffer no consequences, is that rule a law? This Article asks that question about some of our most cherished rules—those contained in the Bill of Rights. To some legal philosophers, positivists in particular, the threat of consequences is the defining feature of a law. Thus, a rule, even if clearly written down, lacks the power of law if, when it is broken, no formal punishment follows. Under the doctrines of Bivens and qualified immunity, some violations of the Bill of Rights by federal officials do not lead to legal punishment, as victims are barred from suing officials who violate their rights. Under the sanctions-centered definition of law, those provisions of the Bill of Rights are not law at all regarding those officials. If that outcome is unacceptable, then the doctrine of Bivens must change, allowing people to sue the federal officials who violated their constitutional rights. Alternatively, if Bivens is a legitimate exercise of judicial review, then we simply must accept that some provisions of the Bill of Rights are not “law” under the sanctions-based definition regarding certain officials. Either way, defining laws as rules with the true threat of consequences leads to a new, clear, and intriguing view of Bivens.

Keywords

Bill of Rights