The Supreme Court’s ruling in Sessions v. Morales-Santana has refueled a classic debate about constitutional remedies in equal protection cases. The ways in which courts should respond to underinclusive legislation is a question that is fundamental to the idea of constitutional rights. Not just in the United States but throughout the Western world, courts struggle with the dilemma raised in Morales-Santana. In this article, I seek to broaden the debate by putting Morales-Santana in a comparative perspective. Drawing from the case law of the U.S. Supreme Court, the Court of Justice of the European Union, the Supreme Court of Canada, and the Federal Constitutional Court of Germany, I distinguish the second-guessing approach (followed in Morales) from three alternative paths: the rights-based approach, the separation of powers approach, and the dialogical model. I then evaluate these approaches in the light of the fundamental right to a remedy as recognized by many constitutions and human rights conventions. I argue that the principles underpinning this right can be used as framework for balancing the need for remedies against constitutional concerns with respect to the judicial role. In conclude by arguing for a more flexible approach based on the dialogical model and the principle of proportionality.
Jerfi Uzman, Upstairs Downstairs: Morales-Santana and the Right to a Remedy in Comparative Law, 9 ConLawNOW 139 (2018)