R.C. Crawford

The Evil of Sovereign Immunity

It is clear to most citizens that all persons should be equal under the law. However, for many years our leaders have told us that we have no right to equal treatment, because of sovereign immunity. The following paper is filled with proof that our founders did not want for any person to be above the law.

Supreme Court Justice Antonin Scalia in his paper The History of Sovereign Immunity reveals that the "fountainhead of American constitutional law was precisely a suit against a federal official" Justice Scalia then goes on to explain the anomaly in the ruling of Chief Justice Marshall in Marbury v. Madison when he advises, "The explanation of this anomaly is quite simple: at the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law. As Marshall notes in passing in the portion of his opinion establishing the proposition that there is no right without a remedy: "In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of the court."

Justice Scalia understates the case. Nothing in our Constitution grants any person immunity. Nothing in our Constitution grants any person the power to grant immunity to another person. Nothing in our Constitution grants any officer, dignitary, member of the government, elected official, or government subdivision immunity. Yet today numerous government agents, officials and others claim to be immune from the same laws that you and I must follow.

And the flawed thought processes of these people who claim to be immune from the laws the rest of us must follow are not new in the history of mankind. From the beginning of time numerous persons have attempted to impose immunity on the trusting souls that they claim to rule. For example, numerous English kings unsuccessfully claimed to be immune at one time or the other. And history has proven that none of the kings that claimed immunity did so with the knowing consent of the people that they attempted to rule. For example, King Charles I of England on the one hand claimed to be immune, yet on the other hand he asserted that he was not immune and would follow the "Petition of Right" which denied him immunity.
Eventually, King Charles openly admitted that he would not follow the tenets of the "Petition of Right", including the requirement that his citizens be allowed to sue him as the King. As a result of the King's denial of the "Petition of Right", the people of England forced him into court, convicted him, and beheaded the King. The people made it clear that no King is immune from the suits of his subjects.
Of the ancient laws, none are more clear than those that granted a citizen his "day in court", or his day before a jury of his peers. It has always been the law of mankind from the beginning of recorded history that a leader is required to grant his followers access to the courts to protect their rights. No true leader ever denied his followers the right to sue before a lawful court, even if the ruler believed the court to be unjust. (For example, even Christ allowed courts to determine his fate.) Documents such as the Magna Charta make clear that a citizen has access to rulings by an independent authority. Thereafter the Petition of Right spelled out in clear terms that a citizen has a right to protect his property against the Crown. And with the beheading of King Charles, it was made enormously clear that should a leader claim to be immune, then the leader is taking his own life into his hands.

Surely, our founding fathers were well aware of the powers and limits of power of the King. After all they lived under the English System whereby they could sue the King using several different writs. For example our founding fathers could sue the King using the writs of "Monstrans de Droit", (a different link to the legal definition) "Petition of Right", regular "Petition" or through the writ of "Traverse". Many of the founders of our nation were attorneys during this period and were familiar with these writs.
With all this knowledge of the rights and limits upon the King, our founding fathers set up our Constitution.
The founders no doubt debated immunity and the concept of sovereignty. Historical documents indicate that a number of speakers were for immunity. However, those who believed in immunity lost their battle to have it included in the Constitution. It is clear that our founders chose to leave out of our Constitution any means whereby a person could claim to be immune, or could claim to have the power to make others immune.

So how did we get to the point where we are today, where the citizens suffer under the injustice of immunity and the government gloats with the unjust power of immunity? It is simple, those in power simply made up a story telling the citizen that English Kings were immune, and that for that reason they too were immune.

In fact one historical document exposes a meeting of the American Bar Association where the topic was a version of "shared immunity". In that meeting, one speaker asks the question "if the judicial branch, legislative branch, and executive branch of the government were to claim to be immune, what could the people do"? The almost universal answer was that no government official would ever make such a foolish claim and expect to be taken seriously. However, a few participants explained that if such a shared immunity were to be set up, there would be nothing the citizen could do, save revolt. Shortly thereafter, our courts did exactly what the participants of this meeting discussed. The courts expanded immunity by slowly setting up a system of shared immunity, granting to the various states and eventually all of the government, "sovereign immunity", using the claim that sovereigns cannot be sued in their own courts. In essence, the courts granted themselves immunity, then protected that immunity by expanding the immunity of both states and the federal government--- all without permission from the citizen, or power derived from the constitution.

Sovereign Immunity links

The 'Lectric Law Library's Lexicon On Sovereign Immunity
"In England it {sovereign immunity} was predicated on the concept that "the sovereign can do no wrong", a concept developed and enforced by - guess who? However, since the American Revolution explictedly rejected this interesting idea, the American rulers had to come up with another rationale to protect their power. One they came up with is that the "sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353."

Beheading of King Charles for denying the Petition of Right
"IX. And also sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes
Complaint of Lord Selden regarding suits against the Sovereign."

"The Mr. Selden. For this Petition of Right, it is known how lately it hath been violated since our last meeting; the Liberties for life, person and freehold, how they have been invaded; and have not some been committed, contrary to that? Now we, knowing these invasions, must take notice of it. For Liberties, for State, we know of an order made in the Exchequer, that a sheriff was commanded not to execute a replevin, and men's goods are taken and must not be restored. Whereas no man ought to lose life, or limb, but by law; hath not one lately lost his ears (meaning Savage) that was censured in the Star-Chamber by a judgment? Next, they will take away our arms, and then our lives. Let all see we are sensible of these customs creeping upon us: let us make a just presentation hereof to his majesty.

Magna Charta-- "Submission of the King of England and all future Kings to suits by subjects."
52. If anyone has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five and twenty barons of whom mention is made below in the clause for securing the peace. Moreover, for all those possessions, from which anyone has, without the lawful judgment of his peers, been disseised or removed, by our father, King Henry, or by our brother, King Richard, and which we retain in our hand (or which as possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised, or an inquest made by our order, before our taking of the cross; but as soon as we return from the expedition, we will immediately grant full justice therein.

Events leading to the execution of King Charles

More on the events leading up to the beheading

Memorabilia of the Execution

Views of the execution of King Charles I 11th Amendment

State Sovereign Immunity rejected by Fed Court in Tennessee Case

Petition of Right

Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisholm v. Georgia [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia [6 Wheat. (19 US) 264 (1821)], and germinating in Clarke v. United States [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism.

Example of flawed Sovereign Immunity interpretation
Sovereign immunity is an expression of the lawmaking power of government and reflects judgments concerning how public resources should be distributed. As Alexander Hamilton famously observed: "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."(1)
(My comment: The problem here is that the founding fathers did not adopt Hamilton's theory, they left the right to immunity out of the Constitution.)

The Issue "Copyright infringement by states"
The Supreme Court decision in the case of Florida Prepaid v. College Savings will likely have a significant negative affect on copyright owners' ability to bring copyright infringement suits against states and their instrumentality's. Without the right to sue a state or state instrumentality for copyright (or patent or trademark) infringement in Federal court, states and state officials are free to engage in widespread uncontrolled copying and use of the valuable intellectual property assets of others without fear of being held liable for infringement. This is a significant problem for copyright owners-who are likely to suffer tremendous losses due to increased infringement by states as a result of this decision.

Can't sue State for environmental property rights
Any environmental suit against a state or relating to property owned by it may be subject to a defense of sovereign immunity. The Supreme Court's decision in Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996) effectively precludes any private cost recovery action under CERCLA against a state.

Chisholm v Georgia
Issue: Does the jurisdiction of the Supreme Court extend to suits by an individual citizen of a state against a state?
Decision: Yes. (vote 5-1)

Opinion by Mr. Chief Justice Jay Reason: The Constitution says that "The judicial power of the United States shall extend to controversies between a state and the citizens of another state." This was taken to mean that the power also extends to controversies between an individual and a state. The Constitution did not say that a state could not be sued, and hence the Court must judge all suits on the merits before it. There was no mention in the Constitution to exclude this type of suit; therefore the suit was properly brought before this court.

More Chisholm V Georgia
Chisholm v Georgia, Actual ruling of the court
II. 1. The judicial act recognizes the jurisdiction over States. Instead of using the first expression in the Constitution, to wit, "controversies, between, &c." it adopts the second, namely, "where a State shall be a party." Thus it makes no distinction between a State as Plaintiff, or as Defendant; but evidently comprehends in the word "party" a State, as Defendant in one case at least, where a State is opposed to a State. This, after what has been said, need not be further pressed.

The dissenting opinion in Chisholm V Georgia
The only remedy in a case like that before the Court, by which, by any possibility, a suit can be maintained against the crown in England, or could be at any period from which the common law, as in force in America, could be derived, I believe is that which is called a Petition of right.
[T]he end of such action is not to compel the Prince but to persuade him.
[I]n all cases of petition of right, of whatever nature is the demand, I think it is clear beyond all doubt, that there must be some endorsement or order of the King himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace, and not on compulsion.

Lane v Pena--- Diabetic man's plea for help, after being discriminated against by Federal Government is denied by Supreme Court. Court grants Sovereign Immunity.
In December 1992, Lane was separated from the Academy on the ground that his diabetes was a "disqualifying condition," rendering him ineligible to be commissioned for service in the Navy/Merchant Marine Reserve Program or as a Naval Reserve Officer.

Woman Raped Sovereign immunity Granted for Police Officer committing rape.
The state's highest court agreed to hear an appeal by a woman whose lawsuit was dismissed by a lower court. She claimed she was raped by an Alexandria police officer.

Attorney Mike Taylor's explanation that many legislatures have changed sovereign immunity because it was created by judges.
Courts have said that when someone claiming to have been injured by the government or its employees files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. This is not a decision for the courts.

Additional information about ancient rights