86 Geo. L.J. 2537 (1997-1998)
Congress, Courts, and Constitutional Remedies

handle is hein.journals/glj86 and id is 2557 raw text is: Congress, Courts, and Constitutional Remedies
Some years ago, I noted that [c]onstitutional law is generally understood as
focusing on doctrines or theories that give shape to the constitutional rights of
individuals. Yet ... there is reason to doubt that 'the central problems for
constitutional law   ... are issues of the definition of rights rather than the
creation of a machinery of jurisdiction and remedies that can transform rights
proclaimed on paper into practical protections.' '
The three recent statutes that form the subject of this symposium-the Prison
Litigation Reform Act (PLRA),2 the habeas corpus provisions of the Antiterror-
ism  and Effective Death Penalty Act (AEDPA),3 and the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA)4-sharply narrow the juris-
dictional and remedial schemes that had developed through a mixture of
legislative enactment and judicial elaboration. Because that development has
generally been free from explicit discussion of constitutional requirements,
these three 1996 enactments pose questions that courts have rarely been re-
quired to answer about the scope of congressional authority to define and limit
The stimulating papers presented by Professors John Harrison5 and David
Cole6 are both concerned with the reach of congressional authority to restrict
the scope of judicial redress. In quite different ways, both papers also address
the contemporary significance of traditional forms of remediation for constitu-
* Story Professor of Law, Harvard Law School. I benefitted greatly from helpful comments from
Debbie Anker, Dick Fallon, Vicki Jackson, Peter Schuck, and David Shapiro, and from the opportunity
to review a draft of Fallon's article, Applying the Suspension Clause to Immigration Cases, 98 COLUM.
L. REv. 1061 (1998). I am also grateful to my fellow panelists, an intellectually diverse but uniformly
congenial and stimulating group with which to discuss these issues. Scott Angstreich and Becky
Wickhem Wegner provided superb research assistance. In general, I have not updated this article to take
account of developments after January 1998, when the oral version of this paper was delivered.
1. Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs
and Defendants as Private Attorneys General, 88 COLUM. L. REv. 247, 282 (1988) (quoting Benno C.
Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West
Virginia, 61 TEx. L. REv. 1401, 1423 (1983)).
2. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110
Stat. 1321 (1996).
3. Pub. L. No. 104-132, 110 Stat. 1214 (1996).
4. Pub. L. No. 104-208, 110 Stat. 3009 (1996). The AEDPA, see supra note 3, which was enacted
earlier in 1996 than the IIRIRA, included provisions (found in  422-43) that also restricted judicial
review in immigration cases, but those provisions have essentially been superseded (transition problems
aside) by the similar provisions in the IIRIRA.
5. Jurisdiction and Remedies: Congressional Power and Constitutional Remedies, 86 GEO. L.J. 2513
6. Jurisdiction and Liberty: Habeas Corpus and Due Process as Limits on Congress's Control of
Federal Jurisdiction, 86 GEO. L.J. 2481 (1998).


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