Monday, May 23, 2011

Sovereign Impunity

Sovereign immunity is sometimes called “crown immunity.” It has been documented in early English common law. Sovereign immunity is the doctrine that assumes that the monarch or the state cannot commit a legal wrong. It follows, therefore, that state is immune from civil suit or criminal prosecution. Some states have waived immunity to allow for suits, and in other cases some individuals may be charged as a surrogate for the state. In other words, unless it has been expressly permitted, a citizen cannot sue or bring charges against the government. Misfeasance, malfeasance and intentional indifference for the law are not grounds for suing or filing charges against the government or one of its elected officials or appointees. It seems that they have taken that “sovereign” aspect to heart.

Clearly, it would not be wise in these litigious times for every disgruntled citizen to use the courts to bend the political apparatus to her or his will. There are some groups or associations who do that now with some degree of success. The normal citizen, however, is often powerless to require that government follow the law….particularly the Constitution of the United States. As noted above the concept of sovereign immunity was a staple of English common law, but actually it is a power move by rulers to cover their tracks for any stupid or nefarious actions. In essence sovereign immunity is an   institutionalized lack of accountability. The politicians and the bureaucracy make the laws and enforce them, but in many cases they are exempt from obeying those same rules. Even when they are obligated by law or by oath to adhere to the law, they dismiss or ignore it without fear of repercussions because the Congress is afraid to challenge the Executive branch and vice versa.

We find ourselves on the horns of a dilemma. The separation of powers in the Constitution is designed to deny any of the three branches the capacity for running roughshod. Because all three branches ignore the law and exempt themselves from the consequences, we have no viable method for regaining control of our government. They have successfully isolated themselves from the people and from accountability. In a sense all three branches appear to work in cahoots to ensure the exalted status of the political elites. Even when they disagree, they pointedly fail to hold the others responsible. The political class fears the power of the people far more than they dislike one another’s policies. If they are unwilling to hold one another accountable, and if they all benefit from the protection of sovereign immunity, what recourse is available to the people?

We may consider Thomas Jefferson’s observation that a bloody revolution is needed for every generation to be a little over the top and I suspect that the sage of Monticello may have written it with his tongue firmly planted in his cheek. The truth of the matter is that if the THREAT or the potential for revolution had existed, we might have had a better outcome than we are currently experiencing. The breakdown occurred because we have gone too many generations without the prospect of a popular uprising thus allowing the political class to solidify their power, treat the law with contempt and willfully ignore the Constitution. The due diligence role for the people has become past due. To recapture the power for the electorate will require a Herculean effort with an uncertain outcome. Are there enough patriots willing to tackle the entrenched political class for a sustained period? Let’s hope so. The current method of the political elites ignoring the law is the fast track toward tyranny.

If the people successfully reassert their power over the republic, the doctrine of sovereign immunity should be altered. No immunity should protect politicians or bureaucrats from votes or actions that violate their oaths, the law of the land, or the Constitution. Politicians should be immune from disaffected voters lawsuits because of an unpopular vote…if the measure conforms to Constitutional and legal standards. Our public representatives should be held accountable and legally liable if they act beyond the parameters of their oaths, the law and the Constitution. They do not deserve, nor should they have sovereign immunity if they continue to act with imperial impunity.

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