"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, October 15, 2015

Gutting the civil rights litigation - sovereign immunity and its conceptual flaws in a popular sovereignty

Who is the sovereign in the United States, and what form of sovereignty United States has?

The question is not a rhethorical as it may seem.

Well, the Declaration of Independence (We The People) clearly indicates what kind of sovereignty we have: a popular sovereignty, where all the people of the country are a collective sovereign.

Yet, the way sovereignty is understood by the courts is that the sovereign is the government.

For example, if you sue your own state for constitutional violations (or state officials in their official capacity), most likely your lawsuit will be dismissed on the so-called "sovereign immunity" ground, or on 11th Amendment grounds, which for many courts is interchangeable.

The 11th Amendment does not create a bar to sue YOUR OWN state - only other states.

The U.S. Supreme Court recognized that, but still invented an "implied" sovereign immunity from "common law", as a judicially created prohibition to sue your own state.

The fact that the "old country" common law applied to a DIFFERENT SOVEREIGN, with a completely different set-up of interaction between the sovereign and the subjects as opposed to a sovereign in a democratic country, never concerned creators of "sovereign immunity".

Apparently, creating sovereign immunity was a way for federal courts to clear their dockets of civil rights cases and provide benefits for state government litigants with whom judges are often joined at the hip through a variety of relationships coming from education, employment, family and friends, as well as participation in various out-of-court organizations.

Yet, let's see what was the interaction between the sovereign and his or her subjects in the "old country", the source of the common law, and whether that set-up is readily translatable for the American soil.

Here is a diagram that I put together to illustrate the differences between the concept of sovereignty in a monarchy, from where the "sovereign immunity" principle has been derived by American courts, through the so-called "common law", and what we have in the United States, popular sovereignty:

The differences between the King as a sovereign and a popular sovereign in a constitutional democracy are very clear.

1. Unlike a monarchy where the King is the sovereign with ultimate and absolute control over his subjects, through his servants (the government) or directly, there are no subjects in the popular sovereignty.  All citizens of the country are part of the popular sovereign.

2.  Subjects to the sovereign are not allowed to control the sovereign.   In a popular sovereignty, there are no subjects.

3.  Servants of the King are not allowed to control the King.  In a popular sovereignty, the popular sovereign allows its servants (3 branches of the government the sovereign appoints or elects) to control the sovereign, by consent, in a limited way, within strict rules.

What follows from this simple structural analysis is that the so-called "sovereign immunity" (King's immunity of King's sovereigns) is not readily translatable into a popular sovereignty, because in "common law" sovereign immunity was applied to lawsuits of the King's SUBJECTS against the King's SERVANTS, which was the equivalent of suing the King who had absolute and unrestricted power, and "could do no wrong".

In a constitutional democracy, any lawsuits brought by citizens against the government are lawsuits brought BY THE SOVEREIGN against ITS OWN SERVANTS for misconduct on the job - and sovereign immunity in the way it existed at English common law is conceptually not applicable to a popular constitutional sovereignty, because if courts want to follow common law, they would then have to recognize that it is the civil rights plaintiffs, as part of the popular sovereign who will then be entitled to "sovereign immunity", and that members of the "popular sovereign" have the power, as the King had in the "old country", to remove public servants whose performance displeases them, at will.

Of course, members of the government, including judges, would not like to accept that, as that will mean loss of lucrative positions, salaries, benefits and pensions for themselves and their family members.

Yet, if sovereign immunity is to be applied in an intellectually honest way, the way it was applied in the "old country", then:

  • sovereign immunity does not apply in lawsuits BY the sovereign against its servants, because it applied only as a delegation of immunity FROM the sovereign to his servants when his servants were sued by the subjects (a non-existent class in a popular sovereignty/constitutional democracy).
 For that reason, I have an issue with the "sovereign citizen" SCHOOL OF THOUGHT to be called "paper terrorism" or any other kind of "domestic terrorism".

If they engage in acts of violence - then it should be addressed through criminal law, and then they have a right for a defense that they are not happy with the way their servants rule and revoke their consent to be ruled in such a way - which is the right of any citizen, part of a popular sovereignty.

If they simply engage in peaceful legal process, spreading their ideas, filing papers with public servants of various branches of the government and asserting their right of members of a popular sovereign - that is an activity fully covered by the 1st Amendment, and by their of popular sovereignty.

Instead of quashing such arguments, the government should at the very least engage in an honest debate as to what does it mean that We The People are the sovereign of this country, and not sanction people who raise such issues. 

The government must remember that the lack of honest discussion of pertinent issues and the lack of real legal remedies for violation of basic rights of the people - be it subjects or members of popular sovereigns - is what leads to revolutions, and that is not my saying, but part of the discussion in the U.S. Congress as a basis of the enactment of the Civil Rights Act (now thoroughly gutted by federal courts through court-invented restrictions, and the so-called "sovereign immunity", incorrectly applied, is just one of them.

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