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).
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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