I don't think it would be unconstitutional ex-post-facto. Obergefell v. Hodges didn't define sex discrimination in marriage certificates unconstitutional after a certain date. It was always unconstitutional, and was recognized as such in their ruling.
And yes, I would like to see, actually, qualified immunity removed and governments held liable for rights violations. Perhaps not prison time for the clerks - who were simply "following orders", as horrendous a saying as that is - but some liability and remedy for the countless people harmed.
How different a world would it be if as a result of Brown v. Board of Education was that black families were financially compensated for sixty years of segregation and for centuries before that denied the right to an education?
How different a world would it be if as a result of Shelley v. Kraemer, every black person who was told they couldn't buy a home because of a bank was compensated?
How different a world would it be if as a result of Whole Women's Health v. Hellerstedt, women who sought an abortion and were denied or unable due to unconstitutional restrictions on clinics were compensated by the equivalent of child support from the state?
I think that would be a better world. No, I don't think the clerks, the school boards, or health commission members in Texas should go to jail. But I do think that perhaps, just perhaps, we might live in a more just world today if there were long-term consequences for denying someone their rights. And maybe, just maybe, we can then start to ask whether or not "just following orders" is a good way to justify one's individual place in society.
But before we go down the slippery slope of questioning whether evil can be banal - it can - we should ask whether or not its prior victims should be entitled to a remedy too.
> I don't think it would be unconstitutional ex-post-facto. Obergefell v. Hodges didn't define sex discrimination in marriage certificates unconstitutional after a certain date. It was always unconstitutional, and was recognized as such in their ruling.
Maybe not on some technicality, but the effect would be the same. Conduct that was reckoned to be legal (and in fact required by law) becomes retroactively illegal because of the new interpretation.
> How different a world would it be...
You'd have officials second guessing the law left and right, so it wouldn't be much of a law anymore. You can imagine situations where that might be good, but there are just as many (if not more) where that would be very bad.
You chose your examples, but there'd be others that may be less compelling to you: cities being forced to pay compensation because they tried to regulate gun ownership, retroactive holes in the budget because the individual mandate was declared unconstitutional. Those are just some thing I can think of off the top of my head. Is that how you want good faith efforts to solve problems treated?
I think this is a care where idealism and practicality are in a pretty severe conflict, and there have the be pretty strong limits on retroactivity.
I imagine that the rights you're talking about would never have been recognized in such a world.
Maybe I'm just being cynical, but it was hard enough to get those rights recognized in the realm of argument, I imagine putting a giant pile of money on the other side would make it functionally impossible to change anything.
Putting financial penalties on admitting your mistakes doesn't usually make people more compassionate. If it did, the world of corporate law would be a utopia.
I don't think individuals involved in the government should always be liable, it should be the government itself in these institutional cases.
If a police department, a county clerk, or a school repeatedly violates someone's rights, I don't think it's fair to say "Well, we 'fixed' the problem for anyone who comes after those folks." For one thing, due to qualified immunity with police brutality the problem never actually goes away. No one is every held responsible. For another, when cases actually can go all the way up to a court of appeals or the United States Supreme Court, the remedy is usually "don't do that".
There's a pernicious form of cruelty that many of the same people politically aligned with denying people rights also believe that equality of opportunity, not equality of outcome, is the best way to organize society. Yet, when it's recognized that opportunities have been systemically denied and stolen from certain classes of people, those people offer no recompense.
We can and should change that. If we really, genuinely do believe in equality of opportunity then reparations for civil rights violations are necessary. We cannot have equality of opportunity when the playing field has been tilted by centuries of generational and institutional harms.
> I don't think individuals involved in the government should always be liable, it should be the government itself in these institutional cases.
Yes, I get that. I'm not talking about individual liability, I'm talking about institutional budgets.
I'm saying that if acknowledging rights generally costs a large sum of money (in your hypothetical, in payments to people who have had their rights infringed upon) you will see less of it, as pressure gets put on legislators and judges to save money.
To take the recent example of gay marriage, I would expect the phrase "we can't let them marry, there's a budget crunch going on" to be used unironically.
I think that what you're advocating for would end up with less of what you seem to actually want (you seem to want people's rights to be respected).
We already have that system. Congress can pay any reparations it decides.
You want a system where any judge or jury can decide that someone owes someone else a billion dollars based on past law? Until 4 years later when a judge or jury rules the other way and makes them pay it back?
Yes, I believe Congress should pass a law repealing or narrowing the Supreme Court's creation of qualified immunity, and I believe that §1983 lawsuits and rights violations in general, or a variation thereof, should entitle the harmed individuals to reparations.
To keep such reparations from being held up in courts or tossed back and forth, I think that upon finding a violation of constitutional rights has occurred, the Supreme Court can and should appoint a special master or appoint parties to determine the appropriate remedy for historical abuses.
When one state violates another's rights, usually water rights, cases of so-called original jurisdiction for the Supreme Court, they appoint such an individual to study the matter to the extent the court needs, being themselves not experts. The states can argue over the findings and sometimes the reparations are revisited on an annual or recurring basis. The finding may sometimes be that one state owes another "a billion dollars" based on past law.
I see no reason why classes of people shouldn't be afforded the same here. There exist mechanisms to provide long-term, well-informed and adversarially argued remedies. We should not throw our hands up in the air and argue that it's "too hard" when we can adopt such systems already in place.
We're not talking about "someone" though; we're talking about city, county, state, or the federal government compensating victims when agents of the state violate their civil rights. No individual has to pay this directly.
Of course this money comes from somewhere: taxpayers. That seems appropriate, as the citizenry of the US should be held accountable for civil rights violations they allowed through poor choice in elected leaders. Yes, they might be several steps removed from the bad decision-making, but the buck has to stop somewhere.
And yes, I would like to see, actually, qualified immunity removed and governments held liable for rights violations. Perhaps not prison time for the clerks - who were simply "following orders", as horrendous a saying as that is - but some liability and remedy for the countless people harmed.
How different a world would it be if as a result of Brown v. Board of Education was that black families were financially compensated for sixty years of segregation and for centuries before that denied the right to an education?
How different a world would it be if as a result of Shelley v. Kraemer, every black person who was told they couldn't buy a home because of a bank was compensated?
How different a world would it be if as a result of Whole Women's Health v. Hellerstedt, women who sought an abortion and were denied or unable due to unconstitutional restrictions on clinics were compensated by the equivalent of child support from the state?
I think that would be a better world. No, I don't think the clerks, the school boards, or health commission members in Texas should go to jail. But I do think that perhaps, just perhaps, we might live in a more just world today if there were long-term consequences for denying someone their rights. And maybe, just maybe, we can then start to ask whether or not "just following orders" is a good way to justify one's individual place in society.
But before we go down the slippery slope of questioning whether evil can be banal - it can - we should ask whether or not its prior victims should be entitled to a remedy too.