I’ve been much intrigued by Patrick Brennan’s discussion of the concept of sovereign immunity and the consistency of such a doctrinal or jurisdictional limitation on governmental liability for legal wrongs with Catholic Social Teaching, as well as the responsive posts. It is encouraging to learn that such questions are being openly asked and addressed in legal education. I profess no great expertise on state sovereign immunity and the Eleventh Amendment, so nothing I set forth below is intended to respond directly to the questions Professor Brennan raises in that context. However, I do write regularly on its jurisprudential cousin, federal sovereign immunity. Allow me to offer some thoughts grounded in my experience with that field of law.
I submit that federal sovereign immunity need not, and indeed should not, be understood as a mere carry-over of the archaic concept that “The King Can Do No Wrong” nor as a callous means of shielding the government from being held responsible for its wrongdoing. Rather, federal sovereign immunity may be appreciated as but a species of separation of powers, underwhich the courts defer to the elected political branches of government to make the determination as to when the acts of the people collectively through their government ought to be the basis for payment of compensation and how such a legal action when merited should proceed.
To be sure, certain forms of governmental wrongdoing are so egregious or the harm that follows so unjustified that the legislative determination to lift the bar of immunity is not a difficult one, at least not morally difficult. But the decision about when to drop the curtain of sovereign immunity is not always a simple or non-controversial one, from a legal, political, or moral perspective. We allow the government to exercise powers and engage in actions that we would never delegate to individuals or private organizations, from extracting funds through taxation to prosecution of crimes to waging of war. In a meaningful sense, whenever government as the agent of our collective polity takes an action, someone is harmed in some way, whether it be by deprivation of private resources through taxation, restrictions on property rights or private freedom through criminal rules or regulation, removal of or restrictions on choices directly or indirectly such as by subsidizing certain activities and thereby limiting other options, etc. Yet allowing those suffering the consequential harms that follow any exercise of governmental power to seek a judicial remedy does not necessarily follow as night follows day.
In addition, when federal government conduct involves exercise of policy-making powers, asking the courts to evaluate the wisdom of a policy choice in the guise of a tort suit may raise serious questions of separation of powers. For that reason, for example, claims under both the Federal Tort Claims Act and the Suits in Admiralty Act may not be pursued if the government was exercising a discretionary function. Interestingly, the FTCA contains an explicit discretionary function exception, while the courts have implied such an exception as constitutionally-mandated into the SIAA.
Moreover, in one of the growth areas of civil litigation against the federal government, plaintiffs in tort suits increasingly assert that the government’s negligence lay, not in any affirmative governmental conduct, but in the government’s failure to more effectively regulate the conduct of a private third-party (i.e., claims by injured employees alleging that OSHA negligently failed to inspect a workplace and discover the employer’s violation of safety standards, claims by consumers injured by drugs or products alleging that the government negligently licensed a manufacturer or failed to order a recall, etc.) When such a suit essentially alleges mis-government through its failure to uncover the negligence or wrongdoing of another, the government is shifted into the position of being an insurer, which then creates perverse disincentives to engage in safety regulation in the first place.
In sum, people of good faith and moral seriousness can differ on whether governmental liability in court is the appropriate answer to a particular problem, as opposed to adoption of alternative legislative (or even private) measures that may or may not provide monetary compensation and may or may not rely upon the courts for implementation.
Even when a waiver of sovereign immunity is most obviously appropriate (and thus the argument on moral grounds most unassailable), a host of other questions must be addressed, such as the appropriate forum, statutes of limitations, administrative processes for alternative dispute resolution, appropriate exceptions to protect sensitive policy areas, appropriate measures of damages (such as excluding the availability of punitive damages which make no sense if impressed against the taxpayers), etc. In terms of institutional competence, one might well conclude that the legislature is far superior to the judiciary in answering these questions.
Although I acknowledge that what follows is shameless self-promotion, I am pasting below a brief but pertinent excerpt from my forthcoming treatise (ALI-ABA) on “Litigation with the Federal Government” (This particular excerpt also may be found in a parallel and likewise forthcoming article titled “A Primer on the Doctrine of Federal Sovereign Immunity” slated for publication next spring in the Oklahoma Law Review). The current draft of the article may be found at this link.
“By looking at the concept of sovereign immunity and the circumstances under which the federal government has consented to suit against itself, we consider the legitimacy of governmental immunity in a democratic society and the proper role of courts in resolving policy issues raised in suits against the federal government. We also learn much about a system of government by examining when and how that government responds (or fails to respond) to injuries inflicted by its agents or activities upon its own citizens.
Professor Vicki C. Jackson, in her analysis of the principled or prudential reasons for judicial recognition of the limitation on suits against the federal government, describes sovereign immunity as “a place of contest between important values of constitutionalism”:
On the one hand, constitutionalism entails a commitment that government should be limited by law and accountable under law for the protection of fundamental rights; if the “essence of civil liberty” is that the law provide remedies for violations of rights, immunizing government from ordinary remedies is in considerable tension with all but the most formalist understandings of law and rights. On the other hand, a commitment to democratic decisionmaking may underlie judicial hesitation about applying the ordinary law of remedies to afford access to the public fisc to satisfy private claims, in the absence of clear legislative authorization.
[Footnote 7: Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 GEO. WASH. INT’L. L. REV. 521 (2003).]
Professor Kenneth Culp Davis, who passed away recently, was one of the nation’s leading experts on administrative law—and a sharp critic of sovereign immunity. He characterized the concept as a medieval holdover from the English monarchy and said that the “strongest support for sovereign immunity is provided by that four-horse team so often encountered—historical accident, habit, a natural tendency to favor the familiar, and inertia.” [Footnote 8: Kenneth Culp Davis, Sovereign Immunity Must Go, 22 ADMIN. L. REV. 383, 383-402 (1970).] He contended that the doctrine of sovereign immunity is unnecessary as a “judicial tool,” because we may trust the courts to refrain from interfering in crucial governmental activities, such as the execution of foreign affairs and military policies, by limiting themselves to matters appropriate for judicial determination and within the competence of the judiciary. Writing more recently, and similarly questioning the historical and constitutional justifications for federal sovereign immunity, Professor Susan Randall contends that sovereign immunity should henceforth be viewed as “a prudential rather than a jurisdictional doctrine,” under which “courts attempt to balance the needs of the political branches to govern effectively with the rights of the citizenry to redress governmental violations of law.” [Footnote 9: Susan Randall, Sovereign Immunity and the Uses of History, 81 NEB. L. REV. 1, 6-7 (2002).]
In response, Dean Harold J. Krent contends that “[m]uch of sovereign immunity . . . derives not from the infallibility of the state but from a desire to maintain a proper balance among the branches of the federal government, and from a proper commitment to majoritarian rule.” [Footnote 10: Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 VAND. L. REV. 1529, 1529-33 (1992).] He explains that, by making the federal sovereign amenable to suit only when it has consented by statute, society entrusts Congress as the representative of the people with determining the appropriate circumstances under which public concerns should bow to private complaints. However, when government conduct becomes removed from policymaking, the arguments for sovereign immunity are at their weakest. Thus, when mundane government activity is involved, devoid of policy implications, we should expect legislative waivers readily to be adopted. Reserving the authority to waive sovereign immunity to Congress does not mean that government is left without a check upon its conduct. Rather, the check is a political one—the potential displeasure of the electorate.
At bottom, nearly everyone agrees that, because the federal government represents the whole community and thus often must act in ways that a private party cannot or should not, the government’s exposure to liability must be controlled. A single individual cannot be permitted in every instance to obtain judicial relief that sets aside the decisions of the community duly made through the elected branches of government. Accordingly, the real question underlying sovereign immunity is who gets to decide what those limitations should be. The disagreement between those who decry the very existence of sovereign immunity, and those who accept it as an essential starting point, may come down to asking “who do you trust.” Those who would abolish sovereign immunity outright trust the courts both to ensure a remedy and to refrain when it is imprudent for the judiciary to act. By contrast, those who defend the concept of sovereign immunity as a limitation on judicial inference of a cognizable cause of action against the government see this constraint as a reflection of trust in the political branches of government to determine the appropriate occasions for consenting to suit.”
I appreciated Fr. Araujo's suggestion that those pursuing CST might do well to consider and pursue the "sovereignty" of a people that has formed itself around wholesome principles. Analytically, sovereignty is a tough nut to crack, dangerously so. It enters the political dialect as a bid for a scalar quantity; all and absolute power in one place (unless and until conceded to others). The impossibility of such a power leads to variously grudging acknowledgments that "sovereignty" is shared (as in "our federalism"), though of course the claims of multiple, ranked sovereigns defy the original notion while continuing to use the word. Another move is to relocate sovereignty in the people; but if the people are sovereign, it is not in the that older sense of being unbound by the natural and divine law. "God alone is sovereign," said Maritain; everyone else is under the (natural and divine) law. One can describe a people or peoples as sovereign, but, with Maritain, I suspect that the original sense of "solutus legibus" is apt to slip back in to do treacherous work. Maritain's judgment was that the word is Protean enough to be better avoided, particularly when it comes to questions of the legitimacy of claims to self-determination. The modern tendency to call the law itself sovereign seems benign enough; even the English version of the Compendium (sec. 408), of which I am an admirer, mistranslates Centesimus annus to the say that "the law is sovereign." But whatever the (considerable) virtues of legal positivism in some of its implementations, CST can hold positive law "sovereign" in only a very diminished sense. When I hear today's Supreme Court invoking "sovereignty" to justify the denial of adequate legal remedies for state violations of positive legal rights, I suspect that a better analysis. I know that the concept of sovereignty does good work in some contexts; Vitoria comes to mind. But the Hobbesian version is always there in the background, too.
Thanks to Rick for his post below. Rick asked what I (among others) think about what the Moscow Patriarchate said. Frankly, I'm not sure what the Moscow Patriarchate said (i.e., meant to say). It's far from obvious that his statement takes issue with the morality of human rights. Certainly the morality of human rights does not presuppose what the Moscow Patriarchate refers to as "the Enlightenment's teaching on man". (On "the morality of human rights", click here.) _______________
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An Alberta human rights tribunal is set to hear a complaint filed against a pastor who wrote, in a letter to an editor, that homosexual rights activists are as immoral as pedophiles, drug dealers, and pimps. One former legislator who supports the complaint commented that "It is never freedom of religion and freedom of speech when you use your religion as a guise to demean other people." (HT: Evangelical Outpost)
A student of mine kindly informs me of this upcoming conference, on law, lawyering, and St. Thomas More to be held at the University of Dallas and sponsored by the Center for Thomas More Studies. One of the speakers is Professor Steve Smith (San Diego), who will be discussing Thomas More and Conscience. (See, e.g., his "The Tenuous Case for Conscience").
We are approaching 300,000 hits here at Mirror of Justice, since we began about 18 months ago. Not Glenn Reynolds or Daily Kos numbers, of course, but still very encouraging. Thanks much to all those who check in, and correspond with us.
A favor: Please consider -- right now! -- sending an e-mail to 5 or so friends who you think might be interested in the MOJ conversation and telling them about the blog. The more the merrier!
I'm pleased to report that the MOJ crew has signed on two more bloggers: Professor Richard Stith (Valparaiso) and Professor Eduardo Penalver (Fordham, visiting at Yale).
Eduardo is a relatively new lawprof, and a rising star in Property theory and land-use law. He also writes on Catholic Social Thought, and has roots in the Catholic Worker movement. (I should note that Eduardo will be presenting next month at this conference, on Kelo and takings law, along with the lovely and brilliant Professor Nicole Stelle Garnett). Here are some of Eduardo's papers, available through SSRN.
Richard is an expert in -- to pick just a few -- bioethics, comparative law, law-and-religion, jurisprudence, and legal history. He has (at least) five degrees, and has taught around the world. He is also a leader of, and the energy behind, University Faculty for Life. (Here is just one of Richard's many essays and articles relating to abortion and the right to life). He has published (very, very) widely and I look forward to linking to a few dozen of his papers. To pick just one: A few years ago, here at Notre Dame, I was moderator for a panel at which Richard presented a wonderful, beautiful paper, "Icons, Law, and Life." It is a profound reflection on moral anthropology, and on the person as "icon."
Over at Prawfsblawg, Paul Horwitz has a typically thoughtful and thorough post up about Miers and religion called "The Super-Sneak, Double-Back, Reverse Religious Test?" Here's some of what he has to say:
1) A Religious Test?: The first question is whether Miers is in some way either subject to disqualification as a nominee because of her faith, or would be if the administration had selected her solely or primarily on this basis. Given what I've already written on this subject, no one will be surprised when I say the answer is, no. . . .
2) Transparency: That doesn't mean one ought to be sanguine about how all this has played out. One issue is that of transparency. Is the administration defending its nominee one way privately and another way publicly? On this point, some nuance is required. I don't think an administration is in any way barred from discussing a nomination privately with its supporters (or opponents) in the Senate or elsewhere. I don't doubt that this happens in all administrations, at least in the modern era. Nor do I have any problem with the administration talking to, say, Dr. Dobson, a prominent religious conservative, in advance of announcing the nomination. But I am disturbed -- not outraged, but disturbed -- by the impression I get that there is a good deal of space between what the administration is saying publicly about the nomination and the justifications they are offering, and assurances they are making, through private channels. . .
3) Cynicism and Clumsiness About Religion: The last point is related to this one. Although the administration has, somewhat clumsily, said that religion is relevant only as part of Miers' background and not to the question of how she would rule, I think any reasonable observer understands that it is largely playing a double game here: using Miers' faith on the one hand to make clear to conservatives that she will rule as they want and won't become another Souter, and retreating on the other hand to the position that religion is irrelevant to anything other than her character and private beliefs. This is, I think, an illustration of the reasons why the metaphor of the wall between church and state was originally intended largely to protect religion from the state and not the other way around. . . .
4) Double Standards and the Becket Fund: Finally, let me refer back to my earlier discussion of the Becket Fund, which earlier had warned Senators that it would file an ethics complaint against any Senator who "use[s] fervent religious faith...as itself a disqualification for public office." The Religious Test Clause, of course, does not refer to religion as a disqualification, but to the use of religious tests "as a Qualification to any Office . . . under the United States." Although the Fund rightly points out that this meant in practice that religion was used to disqualify individuals because of their faith, similar issues are raised where an administration treats a particular religious faith as a prerequisite for the holding of public office, particularly if that means some folks need not apply. . . .
Let me close this lengthy treatment with a quote from Joseph Cella, president of a Catholic-based advocacy group, in the National Review Online: "The bottom line is that while some might think Miers’s religion provides an early indicator of her view of the interplay between morality and the law, her faith does not do much to bolster the case that she would be faithful to the Constitution. By itself, it provides no reason to support or oppose her nomination. Faith is too precious to be used as a trumpet or as a sword by those who either support or oppose a nominee."
Following up on my recent post about Rod Dreher's new book, "Crunchy Cons" . . . I thought this post, "McMansions on a Hill," at the "Get Religion" blog, was engaging. It is about consumerism. And, it quotes this note from Dreher:
1. As David Brooks has observed, many modern people make up for the spiritual emptiness in their lives by fetishizing material objects. I don’t suppose that’s really a modern thing; after all, the Israelites fetishized the Golden Calf. Its modern version, though, comes with the kind of lifestyle you see celebrated in the upscale shelter magazines. It’s easy for me to see that secular lefties fetishize the old historic houses as embodiments of a certain spiritual purity they see threatened by McMansionization, and what it represents (the “More, Faster” society of rampant consumerism).
I think this is true -- i.e., that some "secular lefties" make it a mark of virtue that they like (or pretend to like) old houses rather than McMansions. In fact, I feel a bit sheepish, because I know that I tease my friends and colleagues who live in South Bend's "burbs" all the time, as if the the fact that I live in a drafty 90-year-old house makes me a better person.
2. On the other hand, a religious conservative like me arrives at much the same place, for different reasons. I don’t think I’m a better person for having chosen this old house of ours, but I do think, in a sacramental sense, it mediates a spiritual ideal of modesty and simple beauty, which I find much preferable to the McMansion ethos. And it’s important, I think, to conserve old places, because of the links they provide with our past.
Much better said, Rod . . .thanks. I'll go back to teasing my pals in the McMansions.
Our neighborhood in Dallas doesn’t look like all the other neighborhoods, and the people who moved in long before us, when it was a dismal, drug-infested slum, worked real hard to reclaim the original beauty and integrity of these old houses, and restore the neighborhood to its original charm. All the things they fought for are now being challenged by Republican developers, and Texans who believe in the sacredness of Private Propitty. You can drive around my neighborhood and see obnoxious McMansions that dwarf the other older, more modest houses. What this says to me is that the person who builds and owns the McMansion says to his putative neighbors: Screw you people, I’m going to do what I want to do, and you’ve just got to live with it.
3. In this sense, perhaps, what secular lefties in that Maryland neighborhood are fighting is an individualistic ethic that asserts the right to disregard tradition and the sensibility of the community for the sake of exercising the sovereignty of the individual. As I believe a lot of what’s wrong with this country is out-of-control individualism (on the left, resulting in the extolling of sexual libertinism, and on the right resulting in the extolling of shopping), I would come together with the left-liberals in this neighborhood as a matter of principle. How we arrived at the idea that the old neighborhood ought to be defended is, to the outsider, a distinction without a difference. What matters is that we stand by tradition and community.
One wrinkle: In many old neighborhoods -- that do have the charm and can (or could) sustain the values that Dreher values -- what is really needed is an influx of developers' cash. "Tradition and community" are great. Crappy, decrepit parks, houses, and sidewalks are not. The danger (we come, finally, to law!) is that those with Rod's (and, I think, my) values will conclude that the answer to McMansions is short-sighted, exclusionary regulation. I live in an old neighborhood, with plenty of charming, modest houses. But, we could really use a Whole Foods, an Einstein Brothers, and a Starbucks.
Just a reminder: The Christianity Today weblog is great. And exhausting. Just by way of example, check out these stories and links regarding the movements toward legal euthanasia in the United Kingdom.
