Yet, federal courts continue to apply Will in denying civil rights suits against the states and state officials sued in their official capacity, even though the U.S. Supreme Court did not amend its decision in Will which was based on the 11th Amendment, and was invalidated according to its own decision in Alden v Maine, because 11th Amendment has nothing to do with "state sovereign immunity".
The concept of state sovereign immunity, same as the issues of prosecutorial immunity, absolute judicial immunity in general and as to judges' malicious, corrupt acts and unconstitutional acts on the bench specifically, qualified discretionary immunity or any other immunity, is not reflected in the U.S. Constitution. In fact, public officials who take their office on a condition of an oath of office to support the U.S. Constitution may not be given immunity to violate that same Constitution the moment they took that oath to support it. The U.S. Constitution contains a Nobility Clause and Equal protection Clause which would prohibit creating unequal conditions for the government. The U.S. Constitution does not contain a clause allowing anybody to violate it for any reason and under any circumstances. Therefore, judicially created absolutions to constitutional violations are clearly unconstitutional.
The Civil Rights Act of 1871 through which Americans are allowed a private cause of action to enforce their federal Constitution against their state governments, must be liberally construed, as any enforcement statute is.
Yet, while federal courts make the necessary disclaimers each time they introduce a restriction on its own jurisdiction in civil rights lawsuits, stating that such a restriction is an exception and not the rule, exceptions did become the rules of civil rights litigation long time ago, and civil rights litigation unnecessarily became a judicially created minefield with practically no chance of survival for the civil rights litigants, who are mostly poor, uneducated and left without recourse.
There are numerous scholars writing on the subject and criticizing decisions of the U.S. Supreme Court in creating bars to federal jurisdiction for civil rights litigant as exceeding authority of federal courts to rule this way. Yet, the only body in the United States which can "overrule" the U.S. Supreme Court, the U.S. Congress, sleeps at the wheel since 1871 and has failed to legislatively abolish judicially created restrictions to federal jurisdiction.
Yet, the U.S. Supreme Court did create such a statute of limitations for the Civil Rights Act of 1871, 42 U.S.C. 1983, even though it is nowhere to be found in the statute itself.
Moreover, the U.S. Supreme Court matched the judicially created statute of limitations to statutes of limitations for torts in state law of various states. Thus, there is no uniform statute of limitations for the federal claim under the Civil Rights Act. There are instead, multiple statutes of limitations matching state law, which is completely unacceptable for prosecution of a federal claim.
In New York the judicially created statute of limitations is 3 years. It means that if the constitutional violation, or unconstitutional conduct of a government official occurred more than 3 years before the litigant brought the lawsuit, the litigant is without recourse, no matter that unconstitutional conduct is considered void under the Supremacy Clause and Marbury v Madison. There are multiple reasons why poor and uneducated people, often intimidated by the government, either do not know their rights to sue, or do not have enough funds for access to court within the statute of limitations.
Making statute of limitations for federal claims in federal courts different in different states, in my opinion, defies the Equal Protection Clause and the Petitions Clause of the U.S. Constitution, but federal courts consistently apply state-generated statutes of limitations to federal civil rights claims.
- Pullman (1957)
- Younger (1971)
- Colorado River (1976)
- Constitutional avoidance
- Judicial Immunity construed as covering a multitude of non-judicial court employees and experts, even for malicious and corrupt acts and constitutional violations
- Sovereign Immunity
- Prosecutorial immunity
- Qualified immunity of any public official
- The Rooker-Feldman doctrine
- The Twombly/Iqbal specific factual pleading requirement (amending Rule 8 of Federal Civil Procedure that does not require specific pleading for civil rights claims)
- Res Judicata
- Collateral Estoppel
- Narrowly defined standing concept
- Playing games with mootness and ripeness concepts
- Statute of limitations
- Impracticable page limits for memoranda of law in opposition to motions to dismiss civil rights lawsuits and on appeals
- Impracticable time limits for response to motions to dismiss and appeals of dismissals of civil rights claims
- Impracticable filing fees making civil rights lawsuits unaffordable for majority of the population in the United States
- Impracticable numbers of copies to the U.S. Supreme Court (40) in the era of electronic filing, making it impracticable and unaffordable to file for writs of certiorari to most of U.S. litigants
- Refusal of federal courts to allow pro se parties to file electronically as of right, which discriminates pro se parties as compared to represented parties
- Allowing state Attorneys General to use public funds to represent violators of their oaths of office instead of prosecuting them and ousting them out of office;
- Rules of frivolous conduct against civil rights litigants and their attorneys, requiring constitutional arguments to be "reasonable", or mainstream. Such a requirement does not make any sense when any new constitutional precedent declared a victory over an old rule which was previously a mainstream rule. If the mainstream thinking is set in stone for an eternity, at no time can constitutional law develop and such an approach stifles social change in how the society views basic human rights. At some point in the past it was acceptable to treat women as commodities of men, deny them education, employment, right to own property, marry them against their will. It was allowed under the same U.S. Constitution under which it is not allowed now. Therefore, some attorney or party at some point made a breakthrough argument and overturned the previous "well settled law". Constitutional arguments must not be subject, as a matter of due process of law, to a majoritarian rule.
Thus, none of these doctrines are part of the Supreme Law of the Land and should have any part in constitutional jurisprudence.
Now, when multiple scholars and courts disagree on the scope, meaning and legitimacy of judicially created restrictions to federal jurisdiction, it is unconscionable to assert that pro se civil rights litigants, mostly lacking legal education or any higher education, proceeding in large numbers pro se because attorneys are increasingly weary of sanctions and refuse to take civil rights cases, must know the quagmire of judicial doctrines now required for a federal civil rights lawsuit to survive. Civil rights litigants are practically set up for failure by the amount and breadth of judicially created doctrines barring their access to federal courts.
It is my sincere and good faith belief that such doctrines, taken in their totality, represent a gross violation of the Petitions Clause of the 1st Amendment, and exceed authority of federal courts restricted by Article III of the U.S. Constitution.
Federal courts' refusal to abide by the text of the U.S. Constitution and instead regarding the U.S. Supreme Court precedents as the Supreme Law of the Land, which view does not correspond with the contents of the Supremacy Clause of the Article VI of the U.S. Constitution, is a separate violation by each federal judge who follows this misconception of the judge's own personal oath of office to be faithful to the U.S. Constitution, which is intolerable, unconstitutional and must not be accepted by the American people as the "rule of law".
Federal courts have no authority to rule that judicially created doctrines and rules cited above somehow "require" the court, according to the rulings of the U.S. Supreme Court, unsupported by the Article III jurisdictional restrictions, to refuse to exercise the court's jurisdiction, toss cases for exceeding time or page limits, even though courts take months to decide cases and write cases on hundreds of pages sometimes.
The U.S. Supreme Court recognized that it has “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”, Cohens v. Virginia, 6 Wheat 264, 19 U.S. 264, 5 L. Ed. 257 (1821). Each federal judge of the lower district and appellate federal court is taking an oath of office not to the U.S. Supreme Court, not to the state governments that federal courts but to the U.S. Constitution, and should not engage in protecting state governments from civil rights lawsuits by applying unconstitutional judicially created restrictions to the courts' jurisdiction.
Thus, if a precedent of a higher court, no matter how high, including precedents of the U.S. Supreme Court, contradicts the U.S. Constitution, a lower federal court must apply the Supremacy Clause and not follow such precedents, instead of claiming as federal courts do now that the unconstitutional precedent of the U.S. Supreme Court is somehow "well settled law" and punishing any litigants or attorneys who dare to spawn a heresy of challenging that law on the basis of the text of the U.S. Constitution and its plain meaning and fair and reasonable interpretation.
We need to return the cart behind the horse and have our courts stick to the U.S. Constitution and not to their own "common law" generated by amending that Constitution and amending the enacted federal laws through interpretation, for which federal courts have no constitutional authority.
All it takes is for the U.S. Congress to finally wake up from its beauty sleep and to legislatively abolish judicial amendments to the Civil Rights Act and to the U.S. Constitution, thus clearing the rightful path of civil rights litigation.
Otherwise, a situation where the United States continues to claim itself to be the beacon of democracy and the example of respect to human rights for other countries while it refuses to allow its own citizens effective access to courts and a right to effective redress of their basic human rights violations, is completely unconscionable.
Judicially created doctrines created a situation where the public servants are abusing their sovereign and master, the American People, and are not allowing the master any redress for the abuse. Such a situation puts the concept of fairness, constitutionality and sovereignty on its head.
Judicially created doctrines and rules gradually created a situation where federal courts which are supposed to be strictly adhering to and strictly applying the law and the U.S. Constitution, pursuant to their limited Article III jurisdiction, are instead acting as protectors of the state governments and creating conveniences for themselves to reduce their dockets, while at the same time denying civil rights litigants remedies for egregious constitutional violations by the government.
It is my sincere and good faith belief that such a situation is unacceptable, it presents the U.S. to the international community as not acting in good faith in fighting for human rights anywhere but not within its own borders, and this situation surely must be changed.