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]