Disability affects more than just the physical. It also affects one’s ability to exercise various rights guaranteed under the Constitution. In many respects the efficacy of a constitutional right is intimately linked to one’s physical ability to carry out the right. The right to peaceably assemble, to vote, to free speech—none of these can meaningfully occur without the physical ability to carry them out.
Sight, hearing, cognition, the ability to stand and walk—all are presumed to be normal in relation to the Constitution. Some might argue there should be a presumption of substantial loss if an injury is so serious that it materially affects one’s ability to exercise a constitutional right.
It can be argued as well that the Constitution should be interpreted to provide special protection to those with disabilities and other uniquely vulnerable groups such as children, the mentally impaired, or the elderly. Currently there’s no universally-accepted trend in federal or state constitutional law that reads the Constitution as a document that provides such protection, but there should be.
The run-of-the-mill state court case involving an accidental injury is not typically seen as implicating a violation of constitutionally-protected rights. There are certain categories of damages specific to the individual such as pain and suffering, loss of a normal life, disfigurement, lost wages, and medical bills, but nothing that recognizes how an injury might affect one’s relationship to society at large. Stated differently, the common law recognizes recovery for personal injuries, but not public injuries.
The question thus arises: Should the public aspects of an injury be taken into account? Should the severity of an injury be evaluated in relation to how it affects one’s ability to exercise one’s constitutionally protected rights? Should constitutional harm be recognized as an element of damage?
It can easily be argued that constitutional losses should be recognized as a separate category of damages recoverable in any personal injury case. Doing so would acknowledge that society at large has suffered harm as well as the individual. It would also raise awareness that a serious injury has both private as well as public ramifications.
Nor would compensation for constitutional harm be duplicative of other damage elements. The harm is public, not private. The loss is specific to one’s inability to carry out rights guaranteed under the Constitution. Our role as citizens, not as isolated individuals, would be the focus, and compensation would be directed solely to redress that disruption.
Thinking along these lines makes perfect sense: for the first time in state court litigation society’s interests would be taken into account. All individuals possess a dual status—as private persons as well as public citizens. A serious injury damages both, and the law should recognize each as separately compensable.
