One of the key problems today is sovereign and official immunity and its abuses. I can only hit a few highlights here.
First, people should be aware, if they are not already, that legal
writers of the era before 1787, and after, were not as systematic as philosophers who seek
comprehensive exposition and rigor would like. Many of them were just stringing together lecture
notes and case opinions, and their analytic skills were often not very
good. That does not mean there are not principles of law that they were
trying to elucidate, even if they were not always attentive to some of
the elements and details they should have been, from our viewpoint. But to get at
those foundations one has to drill down to the principles they
themselves often only dimly understood or poorly expressed, and build a logical structure on what we can discern.
The sovereign is the supreme lawmaker in any situation, especially on
some land. There is no law without a sovereign. Originally, it was a
victorious warlord who asserted dominion over a country. By the Magna Carta in 1215, especially Article 61, the concept had evolved into the
distinction between the person of the crown, an office, and the
individual actor who might fill that office.
The maxim that "the king can do no wrong" was just a polysemous way to
say "the crown is not accountable", because it is the sovereign, and a
court created by the sovereign can't command the sovereign. It can in
principle command the individual who wears it, as Charles I was judged.
And of course it can command the ministers of the crown, although not
all judges are superior to all ministers. That is why the jury was
established, to provide a way for the sovereign to intervene.
But of course, that made the people sovereign, if they tried to pursue
the institution of the jury to its logical conclusion. For a long time
the only person to both wear the crown and recognize its authority
rested on the consent of the people was Elizabeth, England's first, and
it would seem last, deep thinker to play that role. She surrounded
herself with other deep thinkers, most notably Bacon and Coke, who laid
the foundations for further progress.
American independence made the recognition that the people are sovereign
explicit, and did more: It provided a structured process through which
the people could express their sovereignty, through constitutional
ratifying conventions, which freed them to hold the individuals who
might office accountable because they had an orderly and legitimate way
to replace them without impairing the office itself. That was done not
by the people as sovereign, but by the people in the office of electors,
an office that is as much subject to the constitution of government as
other officials are.
Originally, immunity was a privilege granted by the sovereign to
establish a legal claim against the actions of officials who also
represent the sovereign, although perhaps not perfectly. That evolved
into the concept that even the sovereign did not have unlimited power.
He or it was limited by the superior constitutions of nature, society,
and the state, and none of its agents could legitimately infringe on
immunities that ultimately stem from those prior constitutions. The
Framers called those immunities "rights" in the Constitution of 1787 and
the Bill of Rights.
Strictly speaking, sovereign immunity is the immunity of the sovereign
against itself. The erosion about which many justly complain has been
the tendency for officials to claim a share of the sovereignty that
properly belongs only to the people as a whole, and to seek the
protection of the immunity of the sovereign. To the extent the agents
are in fact acting within their lawful jurisdiction and discretion, they
may legitimately claim that immunity. The problem is when they exceed
that jurisdiction and discretion, and are their own judges concerning
whether their actions are within or outside.
The traditional remedy for this was to subject all such decisions to a
jury, but officials have removed many such decisions from the jury,
where it properly belongs. That means the jury must review decisions of
law, and reverse judges in favor of defendants. And it means private
parties must be able to bring actions, including criminal actions,
without being blocked by gatekeepers that do things like stack grand
juries or prevent access to them for private criminal prosecutions.
One of the confusing parts of discourse on this has been a tendency for
too many legal scholars to treat all judicial remedies as being for
damages or property, and overlooking equitable remedies and the
prerogative writs. The Eleventh Amendment was written with only damage
claims in mind, and should have specifically excepted other kinds of
remedies. The concern for that was that if states could be sued without
their consent, plaintiffs could dismantle the states. But the framers of
that amendment missed the point that what they wanted to do was provide
immunity from execution of money or properly judgments, not from suit.
Actions at law serve many purposes than commanding the loser to pay up,
such as bringing out the truth.
Official immunity was restricted and tolerable as long as officials did
not band together as a tribe dedicated to protecting one another from
the public, but year by year they have done just that, and gone from
official immunity for momentary acts within their legitimate authority,
to immunity for anything they do while they hold the office. That makes
their title of office a title of nobility.
All the conceptual tools we need are to be found in the Constitution,
but not without some analysis of its historical and conceptual roots.
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