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.

9 thoughts on “Consequences”

  1. I agree whole heatedly!! The nuisance ordinances that towns pass should all be thrown in the hopper! A town near me has an ordinance banning cell phone use in the car, this same town has an ordinance that if you have gun powder in your home you have to have the towns permission by declaring it.
    The argument is that they are protecting their residents, but they show no proof and get tons of news media coverage. They blame the State elected official for not being smart.
    Florida took a step towards common sense, I hope other states start making similar positions! I mention this to my elected official once a year, at least!

  2. I’ve thought the same for years.

    Also relate it to seatbelt laws, and the like. There is a minority of situations where wearing a seatbelt is worse than not wearing it. If the government forces you to wear it, in those cases they should be liable.

    This is not to say you shouldn’t wear a seatbelt, you should, and it should be your decision, when it is your decision you are liable for the consequences, when the govt takes the decision away, they should be liable for the consequences.

    Same could be said of gun laws. If the govt says you can’t carry a gun in certain circumstances they then become liable if something goes wrong.

    I understand this sounds absurd, trying to make the govt liable for such things. But that’s the point. It is absurd, as such they should stay out of such things, by making them liable they will avoid such laws, just like we avoid doing certain things because we become liable if it goes all pear shaped.

  3. Agreed. Unfortunately the partisan cry of “circle the wagons!” tends to preempt any attempt at justice. The on-going horror story of Fast & Furious shows the Democrats putting party (and anti-gun ideology) before principle. The well-documented tendency of the Bush administration to ignore the 8th Amendment–and the ongoing denials and/or excuses made for them–is a good example of Republicans doing it. People tend to forget that Nixon went down because his fellow Republicans decided to put the rule of law ahead of party. The same could not be said for innumerable other violations of law, principle and common decency committed by just about every administration we’ve ever had. When you only get outraged when the other guy does it, you just seem like a partisan hypocrite.

  4. It was simple greed that led the courts to import sovereign immunity. There were war debts and other claims stemming from the War for Independence. Courts didn’t want to see states bankrupted by actually having to pay their debts, and started adopting Sovereign Immunity. Similar similar greed led to the 11th Amendment.

  5. “Same could be said of gun laws. If the govt says you can’t carry a gun in certain circumstances they then become liable if something goes wrong. ”

    That’s somewhat how it is with WI’s new carry law. If a store posts a no-carry sign, then they have more liability if unarmed people inside their store get hurt.

    In related news, that family in Illinois got $330,000 because a cop shot their dog during a raid (amongst other things). Too bad the specific officer only had to cough up $2k, but it’s a start.

  6. You can’t sue the government unless the government says you can. When does the government allow itself to be sued? When losing the lawsuit being proposed will increase its power, bring it more money or allow it to do something it wants to do but is currently prevented from doing.
    That’s a great plan for maintaining liberty.

  7. “When the President does it, that means it is not illegal.”

    – Richard Nixon

  8. Sovereign immunity makes considerable sense when there are few things that the government does, and most such suits are people looking for a quick win in the judicial roulette wheel. As the scope of governmental action has increased, sovereign immunity makes less and less sense, because there is increased risk of official stupidity, malice, or corruption injuring people. (In practice, there are some areas of action so far outside the traditional definition of government that sovereign immunity no longer applies.)

    Of course, there is always 42 USC 1983 for suing officials who violate your civil rights.

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