Sovereign Immunity

     [The following piece first appeared at Liberty’s Torch V1.0 on June 14, 2016. And before you ask: No, I haven’t been to the kzinti homeworld since then. – FWP]

     Some years ago, a friend of mine who sought to pursue an action against his township for mistakenly demolishing his house was told, in exactly the following words, that “The king can do no wrong.” The town functionary who said it was chuckling as he did so.

     This is the doctrine of sovereign immunity: the notion that a government, whether federal, state, or local, is immune to any recourse against it sought by private citizens. The following sentence from a 1991 decision concerning a suit against an Alaskan aboriginal town is particularly striking:

     [W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention.”

     (I particularly like the interpretation of Amendment XI as standing “not so much for what it says,” don’t you? “It doesn’t mean what it says; it means what we say it means.”)

     In combination with sovereign immunity doctrine, the Martinez-Barker decision allows individual State functionaries to claim as their defense that they were “just following orders” in committing even a major felony against a private citizen. Thus, a government can do anything to a private citizen without it or any of its minions being vulnerable to legal action.

     Note how this contradicts the legal doctrine under which the Nuremberg war crimes trials were conducted.

     At this time, government agents are getting away with quite a lot. Nor did it start with Ruby Ridge.

     The conception of the American polity as one governed by the “rule of law” would suggest that no one, regardless of his station, can claim immunity from the law. Indeed, it was a point often and publicly made by presidents and legislators before the Civil War. Isabel Paterson considered it a fundamental distinction between American society, which she called a “Society of Contract, and its European forebears in which altitude of birth could immunize an individual against legal claims, which she characterized as “Societies of Status.”

     Yet we see today, from Ruby Ridge, the Waco massacre, and other, less well publicized incidents, that the “rule of law” is a fiction when it comes to seeking redress against a government or a politically privileged individual. When it was asserted that “The king can do no wrong” in medieval times, the unspoken codicil was “You just try to do something about it.” That’s not supposed to be the case in these United States, as Amendment II should make clear. Yet the courts have maintained the “sovereign immunity” pretense even in the face of the most outrageous misdeeds.

     Have a snippet from a great science fiction novel of the early Seventies: Larry Niven’s Ringworld:

     Earth’s population had been stabilized, about the middle of the twenty-first century, at eighteen billion. The Fertility Board, a subsection of the United Nations, made and enforced the birth control laws. For more than half a thousand years those laws had remained the same: two children to a couple, subject to the judgment of the Fertility Board. The Board decided who might be a parent how many times. The Board might award extra children to one couple, deny any children at all to another, all on the basis of desirable or undesirable genes.
     “Incredible,” said the kzin.
     “Why? Things were getting pretty tanj crowded, with eighteen billion people trapped in a primitive technology.”
     “If the Patriarchy tried to force such a law on kzinti, we would exterminate the Patriarchy for its insolence.”

     The “kzin,” known (at that time) as Speaker to Animals, was expressing his sense that the kzinti Patriarchy, a nominally unbounded authority over all kzinti, would nevertheless not tolerate certain abuses of its supposed power. (He may have been correct; I’ve never visited the kzinti homeworld.) In practical terms, this is also the American attitude…until the American in question collides with the doctrine of sovereign immunity.

     On occasion, sovereign immunity has failed to protect a government; see the Battle of Athens for a recent example. When a sufficient number of persons are sufficiently well armed and sufficiently motivated, they can topple a government. In that sense, sovereign immunity in the U.S. is a fiction, for few local governments are better armed than their residents en masse. Indeed, I would guess that at this time no state government could outgun its residents without federal assistance. However, the fiction is important, above all for a terrible reason: it increases the probability that a truly outrageous government act will precipitate a rebellion and the concomitant bloodshed.

     Amendment I, which includes the express acknowledgement of “the right of the people to peaceably assemble, and to petition the Government for a redress of grievances,” implies thereby that sovereign immunity is an unAmerican concept, the rhetorical vermiculations of jurists notwithstanding. Yet it has been maintained for more than a century. I can’t nail it down, but I have a strong suspicion that the origin of this noxious judicial doctrine might be found in the many overreaches of Reconstruction governments after the Civil War. If that proves to be so, it will add further ammunition to the cause of those who argue that that war, despite the liberation of the slaves and the preservation of the Union, is something modern Americans should hesitate to defend. But that’s past. What’s of much greater importance is whether sovereign immunity can be undone by anything short of a national revolt.

     Food for thought.

     [A final thought: Charles Evans Hughes, once the Chief Justice of the Supreme Court, once said “We are under a Constitution, but the Constitution is what the judges say it is.” In this he echoed a liberal scholar, Leonard Levy, who said that what matters is not what the Constitution says, but what the Court has said about the Constitution in more than 400 volumes of commentary. That is the attitude of the man who disbelieves in individuals’ rights, who holds that “the needs of the State come first:” the deep-dyed statist – and today, American governments are entirely in the hands of such persons. – FWP]


    • Differ on September 11, 2023 at 9:39 AM

    What’s of much greater importance is whether sovereign immunity can be undone by anything short of a national revolt.

    Didn’t NM recently remove sovereign immunity from police?

    • Thomas on September 12, 2023 at 9:49 AM

    I am also curious if you were aware that sovereign immunity is what keeps the majority of police from being prosecuted when they kill people. I would think you would want to protect the police, but maybe I’m wrong about that.

    Seeing as how your first passage concerns fertility, I wanted to ask a question about the death cults concept. (I apologize, I haven’t read the foundation document yet; this is based on the your recent post listing out the different tenets of said movement.)

    Dave’s father was one of 9 kids. Proud American, soldier, and Catholic. He only had two kids. It would appear that Dave has none, and his brother only one. Yet no one would accuse Dave (or his brother, or his father) of being death cult adherents, so what happened there? Why is this staunch Catholic line dying out?

    I will add that one thing the abortion proponents always talk about is adoption – and again: Dave comes from a strong family, had a good upbringing, a religious tradition and a good and stable career in the military. If for whatever reason he and his wife couldn’t have children, why not adopt? Why not give a lost child a loving home and continue on his great tradition? He has an amazing family legacy to pass on and it would put one (or many!) more true American on the front lines for conservatism. Can you explain this? Thanks.

    1. Your story of Dave and his (dwindling) family is a wrenching one, for several reasons. We’re supposed to “Be fruitful and multiply,” yet in the more prosperous countries the trend is toward exactly the diminution of family size that Dave’s line exemplifies. There have been several unpleasant secondary consequences, including the mass admission of incompatible races and ethnicities and faiths on the specious grounds that “we need the workers.” Look at what that’s done to Europe.

      It’s well known that when a nation passes from Agricultural to Industrial orientation, its fertility rate drops. Part of that arises from urbanization, part from the reduced (sometimes inverted) labor value of children. In nations with sophisticated welfare states, the average fertility rate becomes inversely proportional to the economic standing of various demographics. In other words, the poor out-reproduce the well-to-do…and the consequences of that are highly visible in these United States.

      Add all the following factors:
      — the sexual revolution;
      — contraception and abortion;
      — ever-multiplying health hazards and the associated fears;
      — the strange faddishness associated with homosexuality and transgenderism;
      — women’s entry into the workforce and the careerist ethic’s ascendancy among women;
      — the pervasive denigration of traditional women’s roles of homemaker and mother;
      — the skyrocketing cost of bearing and raising a child;
      — the changes in the law’s attitudes toward marriage and family;
      — the social impact of having children (cf. “youth culture”).

      I could go on, but I think the point will stand: Children have been disincentivized, legally, economically, and socially.

      Now, as to adoption, it’s recently come to light that the adoption bureaucracies are hostile toward Catholics who want to adopt. Like most other bureaucracies, they’ve been captured by the Left, which disdains persons who disdain the things it promotes (see the list above). I know several Catholic couples who’d like to adopt, and have tried to do so without success. Though they’re white, they’re open to adopting children of other races…but the lefty bureaucrats are determined not to permit cross-racial or cross-ethnic adoptions; it messes up their appeal to racial and ethnic minorities.

      Does that cast any light?

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