Courts adjudicate the law, including common law. They cannot create new law.
If there was no law or common law establishing "qualified immunity" then the court cannot invent qualified immunity.
In fact, in this very article, one of the Justices agrees with me here:
> Thomas has argued that qualified immunity is essentially a creation of the justices — substituting “our own policy preferences” for that of Congress.
All in all, it's a failed system that requires someone to even have to utilize the supreme court to settle these types of matters. I don't believe the government can legitimately absolve itself from any liability, regardless of circumstance, that a private person is not absolved of. This would require actual change on a state and local level, but that's not a change that most people desire. They believe the state is benevolent, there's only a problem when it's a problem they (the public) face themselves.
By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not? After all, to strike a law passed by the legislature and approved by the Executive is to essentially at a minimum have the power to mint a new law of the form "X law is unconstitutional and cannot have force of law."
That's the troublesome crux that bugged even Jefferson if I recall, that essentially those appointed for life judges through judicial review could single handedly shift the direction of policy in the nation.
For as much effort as was put in to constrain the Executive, the judiciary was a rather pronounced backdoor that I'm unsure that any amount of wrangling or re-architecture could resolve.
Though, I'd love to see an experiment where affordances were made for a "Supreme Jury" of the people to balance out the political strategic value of Supreme Court justice appointments to counter the long term provisioning of power, but I'm still unsure whether that would be stable in terms of maintaining any semblance of checks and balances.
Perhaps that Jury is vested with final discretion over acceptance of writs of certiorari, allowing the populace to direct the attention of the court, but still leaving the review to the appointees. I'm still not sure there's not an exploit there somewhere, but it would be an interesting way to essentially create an "anti-legislature", primarily tasked (given the general tone of Supreme Court appeals) of knocking law off the books. Then again, given I'm just spitballing, I'd want to sit down and give it a real hard think as to whether that would really do anything other than add in more complexity.
> By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not?
Indeed, you are correct. Judicial review is also unconstitutional.
This does indeed beg the question of resolving disputes of constitutionality. I don't believe the congress has the authority to compel the executive to do anything, other than their existing abilities to pass laws. The executive is free to enforce, or not enforce, whatever laws as they see fit, however they see fit. The court's role is to decide if the executive is appropriately applying the law in a particular case, as written by the congress.
There is no explicit or implicit need for judicial review. Why?
What is the purpose of the Constitution? To give limited, specific powers to the federal government. Who's giving these powers? The states.
It's the states' job to limit unconsitutional power grabs by the federal government. How do they do that? Well, both houses of congress are elected by people of each state, not nationally. We can also dive down the rabbit hole of the 17th amendment.
Crucially, the executive is elected by a body appointed by each state. In it's current form, the states have adopted a system where the electors are appointed based on a state's popular vote. This needn't be the case.
This brings us to the final line of defense against unconstitutional acts: nullification. The entire reason the US has a trial by jury system is to judge the law, not the facts. There's no room for a judge to interpret whether a law is fair, or constitutional. Only for them to preside over the trial and adjudicate whether or not the state is applying law, not adjudicating the law themselves.
Is this a perfect system? No, but it's the one we used to have, and unsurprisingly, it's better than the one we have now.
Courts adjudicate the law, including common law. They cannot create new law.
If there was no law or common law establishing "qualified immunity" then the court cannot invent qualified immunity.
In fact, in this very article, one of the Justices agrees with me here:
> Thomas has argued that qualified immunity is essentially a creation of the justices — substituting “our own policy preferences” for that of Congress.
All in all, it's a failed system that requires someone to even have to utilize the supreme court to settle these types of matters. I don't believe the government can legitimately absolve itself from any liability, regardless of circumstance, that a private person is not absolved of. This would require actual change on a state and local level, but that's not a change that most people desire. They believe the state is benevolent, there's only a problem when it's a problem they (the public) face themselves.