This isn't exactly an answer to Fred, but building on Neil's
explanation, the nexus in how one in practice exercises constitutional
rights and personal rights has always been interesting. The majority and
minority both cite /Ashby v. White/, 2 Raym. Ld. 938 in 1703, where
misfeasance by a constable physically prevented P from voting, in an
election where his preferred candidate won anyway. Roberts CJ in dissent
gives the standard historical account that the House of Lords as a
political body finding in P's favour was more a political decision about
Tory-Whig political skulduggery. That is, P had sought to vote for a
Whig and was allegedly resisted as part of a Tory "boots on the ground"
strategy. In truth, Holt CJ's dissent from the KB decision denying a
remedy, a dissent which the HL in some sense favoured, is open to
different interpretations about whether all interferences with rights
must generate a remedy, which is, I think, related to Fred's question.
But it does serve as a reminder that of the overlap between
constitutional rights and the personal rights that in practice shape how
constitutional rights are given effect (less in a digital future? New
rights relating to internet connection, identity and privacy?). Trespass
torts in general have long been involved in efforts to contain state
power and prove wrongs/. //E//ntick v Carrington/ is an early example,
to modern cases like /Ashley/, and that's of course just in England.
These have often performed (depending on your views, proxy) roles for
defending constitutional interests, whether phrased as rights, powers or
something else, just like criminal law sometimes does. There's an
interestinig question about what administrative law now covers instead,
just like there's an interesting question about Human Rights coverage in
place of the tort proxy/scope. I don't know which are the best tools to
explore what the relevant right is, and how breaches of it should be
remedied, here or elsewhere, and certainly the discourses in different
legal systems give divergent views. The South Africa
constitutionalisation of tort law and the Irish and Canadian versions on
the one hand, and the English subsidiary character for HR influences on
the other are just fascinating above-the-water points of that iceberg...

Matt


On 10/03/2021 05:18, Neil Foster wrote:
>
> Dear Fred;
>
> I am not an expert in US law either but here is my take. The right to
> free exercise of religion under the US First Amendment is no less a
> right than the common law right not to be touched without good reason
> (actionably in battery) or the right to be free from unjustified
> detention (actionable in false imprisonment). Like those common law
> rights which are actionable /per se/, the right to free exercise is
> constrained in some circumstances by the rights of others. Clearly
> there is no right to behead someone else on the basis that this would
> be a free exercise of your religion. Different tests have been adopted
> at different times in US jurisprudence as to the limits on free
> exercise. But it seems that in this case the extremely restrictive
> rules about when your religion could be spoken of to others, were
> accepted to go way beyond acceptable limits on that right. Hence there
> was a breach of a constitutional right enjoyed by Mr U. In that sense
> (just as if he had been unlawfully struck by police or locked up) he
> was actually wronged. He was denied the right he had to engage in
> polite speech with others about his religion. As a result, the SC
> rules that in recognition of this wrong having been committed (to
> vindicate his right, if you like), where there was no scope left for
> an injunction to be given, an order of nominal damages was appropriate.
>
> Our common law systems do not usually allow free-standing civil
> actions for breach of constitutional principles, but this is allowed
> in the US. At least that is how I see it. Happy to be corrected by any
> colleagues here who know more about US law.
>
> Regards
>
> Neil
>
> *NEIL FOSTER*
>
> Associate Professor, Newcastle Law School
>
> College of Human and Social Futures
>
> T: +61 2 49217430
>
> E: neil.foster@newcastle.edu.au
> <mailto:Firstname.Lastname@newcastle.edu.au>
>
> Further details: http://www.newcastle.edu.au/profile/neil-foster
> <http://www.newcastle.edu.au/profile/neil-foster>
>
> My publications: http://works.bepress.com/neil_foster
> <http://works.bepress.com/neil_foster>/ ,
> http://ssrn.com/author=504828 <http://ssrn.com/author=504828>
>
> Blog: https://lawandreligionaustralia.blog
> <https://lawandreligionaustralia.blog/>
>
> The University of Newcastle
> Hunter St & Auckland St, Newcastle NSW 2300
>
> The University of Newcastle <https://newcastle.edu.au/>
>
> Top 200 University in the world by QS World University Rankings 2021
>
> /I acknowledge the Traditional Custodians of the land in which the
> University resides and pay my respect to Elders past, present and
> emerging./
> /I extend this acknowledgement to the Worimi and Awabakal people of
> the land in which the Newcastle City campus resides and which I work./
>
> CRICOS Provider 00109J
>
> *From: *Frederick Wilmot-Smith <frederick.wilmot-smith@all-souls.ox.ac.uk>
> *Date: *Wednesday, 10 March 2021 at 1:33 am
> *To: *Neil Foster <neil.foster@newcastle.edu.au>, "obligations@uwo.ca"
> <obligations@uwo.ca>
> *Subject: *Re: SCOTUS on nominal damages
>
> Thanks for this, Neil. I’m confused, though it’s probably a function
> of my ignorance of US constitutional law.
>
> Sometimes a plaintiff in has suffered, or stands to suffer, a wrong if
> the constitutionally prohibited act goes ahead. If Nebraska
> electrocutes me, and electrocution is cruel and unusual punishment, I
> can see that I have been wronged. Nominal damages (at least!) flow
> from that wrong. (Likewise false imprisonment, as in the HCA, or any
> manner of SCOTUS cases on seizure, search, etc.) But Mr U’s ‘right’
> was that the College was not allowed to proscribe U from ‘preaching’
> in public spaces; this is, I take it, a restriction on the College’s
> powers to control activities by licence or contract. Isn’t U’s ‘right’
> just a power to ask the Court to make a declaration that some putative
> act is void? What is the breach by the College which grounds his claim
> to damages?
>
> I also don’t understand how this decision squares with last the /New
> York Rifle/ case, but I may be misremembering the facts of that case
> or what claim was ultimately sought …
>
> Fred
>
> *From: *Neil Foster <neil.foster@newcastle.edu.au>
> *Date: *Tuesday, 9 March 2021 at 10:28
> *To: *"obligations@uwo.ca" <obligations@uwo.ca>
> *Subject: *ODG: SCOTUS on nominal damages
>
> Dear Colleagues;
>
> We don’t often consider decisions of the US Supreme Court, but I
> thought this one was worth noting: /Uzuegbunam v. Preczewski/ (19-968,
> Mar 8, 2021)
> https://www.supremecourt.gov/opinions/20pdf/19-968_8nj9.pdf
> <https://www.supremecourt.gov/opinions/20pdf/19-968_8nj9.pdf> . An 8-1
> decision (Roberts CJ for the first time in his career as Chief in a
> solo dissent) holds that where there has been a breach of a person’s
> constitutional rights, they can maintain an action for nominal damages
> even where the breach is not ongoing.
>
> The case is particularly interesting to me as it intersects with my
> interests in law and religion. The facts: Mr Uzuegbunam (no, I can’t
> pronounce it either) is an evangelical Christian and while a student
> at Georgia Gwinnett College , (a public college in the State of
> Georgia) wanted to talk about his faith with others. The College
> imposed incredibly strict restrictions on his ability to do which were
> accepted, by the time the matter reached the SC, to be a violation of
> his First Amendment right to “free exercise”. But when faced with the
> prospect of litigation the college just dumped its policy, and when Mr
> U graduated, they said he had no legal basis for a remedy as he was no
> longer affected by the policy in any case. He accepted that his action
> for an injunction to enjoin their restrictions had to fail, but he
> persisted with a claim for nominal damages based on the previous
> infringement of his rights.
>
> The court’s judgment was written by Thomas J. A lot of it explores the
> older common law cases. There is an Article III “standing” issue under
> US law requiring a showing that there is a remedy which will "redress
> the constitutional violation". Thomas J says that in deciding that
> issue the court “look[s] to the forms of relief awarded at common
> law.” He explores a number of older cases, in particular /Ashby v.
> White/, 2 Raym. Ld. 938 (K. B. 1703). He adopts the words of Holt CJ
> which on appeal were upheld by the House of Lords: “every injury
> imports a damage” and that a plaintiff could always obtain damages
> even if he “does not lose a penny by reason of the [violation].” (Slip
> Op p 6).
>
> So here an award of nominal damages may be given for violation of an
> accepted right, despite no other harm being shown. The matter is
> referred back to the trial court for determination of quantum.
>
> List members will no doubt see that this sort of reasoning seems to
> connect well with the view at common law that an award of damages may
> function in part as vindication of a private right which has been
> breached. These issues were discussed in the High Court of Australia
> last year in /Lewis v Australian Capital Territory/ [2020] HCA 26 (5
> August 2020)
> http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/26.html
> <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/26.html>
> where at least a majority of the court recognised that infringement of
> rights can be vindicated by a nominal damages award, even if there is
> no separate head of “vindicatory damages”. Gordon J, for example,
> after citing /Ashby v White /in para [43], goes on to say:
>
> [45] This appeal is concerned with the tort of false imprisonment, a
> form of
>
> trespass to the person. It is actionable per se, regardless of whether
> the victim
>
> suffers any harm. It does not require proof of special damage. That is
>
> unsurprising. The tort protects and, where necessary, vindicates a
> person's right to
>
> freedom from interference with personal liberty as a fundamental legal
> right….
>
> [47]A right to nominal damages, as one remedy, follows from that
> finding of
>
> liability. That award of nominal damages marks the fact that "there
> [was] an
>
> infraction of a legal right". There is then a question as to whether
> any other relief
>
> should be awarded to a particular plaintiff, in their own unique
> situation. (footnotes omitted)
>
> This is very similar to Thomas J’s decision.
>
> Regards
>
> Neil
>
> *NEIL FOSTER*
>
> Associate Professor, Newcastle Law School
>
> College of Human and Social Futures
>
> T: +61 2 49217430
>
> E: neil.foster@newcastle.edu.au
> <mailto:Firstname.Lastname@newcastle.edu.au>
>
> Further details: http://www.newcastle.edu.au/profile/neil-foster
> <http://www.newcastle.edu.au/profile/neil-foster>
>
> My publications: http://works.bepress.com/neil_foster
> <http://works.bepress.com/neil_foster>/ ,
> http://ssrn.com/author=504828 <http://ssrn.com/author=504828>
>
> Blog: https://lawandreligionaustralia.blog
> <https://lawandreligionaustralia.blog/>
>
> The University of Newcastle
> Hunter St & Auckland St, Newcastle NSW 2300
>
> The University of Newcastle <https://newcastle.edu.au/>
>
> Top 200 University in the world by QS World University Rankings 2021
>
> /I acknowledge the Traditional Custodians of the land in which the
> University resides and pay my respect to Elders past, present and
> emerging./
> /I extend this acknowledgement to the Worimi and Awabakal people of
> the land in which the Newcastle City campus resides and which I work./
>
> CRICOS Provider 00109J
>
--
Associate Professor, Faculty of Law, University of Oxford
matthew.dyson@law.ox.ac.uk