Joe Huffman notes that there need to be consequences for government officials who break the law. I’ve always wondered why we imported the concept of sovereign immunity to the United States. I realize that this is derived from common law, and thus predates the United States, but the revolution upended a number of our legal institutions, yet we chose to preserve this one.
I can understand, for instance, why you shouldn’t be able to sue your legislator for passing a law that you don’t like, but it seems to me that we should have taken the concept and reversed it. Currently, government and its officials have immunity from suit except for where sovereign immunity has been waived. The Fourteenth Amendment (which, when you think about it in its entirety, was really quite radical in terms of how it restructured our federal system) waived this immunity under some circumstances for states, which brought us legal constructs like qualified immunity.
But it always struck me that you ought to be able to sue your government except where it says you can’t, and not the other way around. If I were constructing a legal system from scratch, I would use this as a concept, instead of Sovereign immunity. If the government is going to tell the people they can’t seek redress in the courts, the people ought to have a say about it.