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.”
Greg Sisk
Tuesday, July 26, 2005
More than fifteen years ago, Stephen Carter anticipated many of the questions that are being raised today about the legitimacy of religoiusly-devout judges drawing upon their religiously-based visions in making judicial decisions. Although he argued that a religiously-devout judge is as entitled to draw upon his religious faith as is another judge to draw upon moral principles, he concluded by asking whether it might not be preferable to return to the aspirational ideal of objective judging so that personal views, whether religious or otherwise, would not be the basis for judicial edicts. Below I set forth some of the concluding words in Stephen Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989):
"Now, of course, we ought to be uncomfortable with the idea that the religiously devout judge will proceed at once to her religious values—but only for the same reasons that we ought to be uncomfortable with the idea that any judge will proceed at once to her own values. * * *
I expect this proposal to make liberals uncomfortable, because the liberal uneasiness with religion is not readily overcome by brief, scholarly analysis. And yet, even if I have not convinced you that the religiously devout judge ought to be free to rest her moral knowledge on her religious faith, I hope that I have at least offered a plausible case for the proposition that there is no apparent reason to treat her religious faith differently from moral faiths of other kinds. The implication of this insight for the “do-the-right-thing” type of judicial review should be plain—either all judges should be free to rely on their moral knowledge as they make decisions, or no judges should.
The ideal of the objective judge was slain by the legal realists long before the critical legal studies movement resurrected it in order to kill it again. But the ghost of the objective judge refuses to go away. I doubt that the objective judge will die quietly, as long as liberals continue to think that letting a judge rest her decisions on a moral understanding is a good idea. Because once a judge’s moral understanding is permitted to play a role, the liberal argument cannot distinguish religiously based knowledge from other moral knowledge, or at least, cannot do so without arguments that require a bit too much cognitive dissonance. The aspirational model of the objective judge might offer the only path to sanity. And if we continue to pursue distinctions as crazy as this one, a path to sanity will be a useful thing to have."
Greg Sisk
Monday, July 25, 2005
Patrick Brennan's reminder that the canon law rules regarding admission to communion concern the sacramental life of the Church is important. At the same time, however, the question cannot be separated entirely from what an individual's "performance in a legislative or judicial role should be." Canon 915 is, as Professor Brennan notes, designed "to protect the ecclesial life of the whole Catholic communion." That includes the responsibility of the bishop as pastor of the diocese to be concerned about the salvation of the soul of the person who asks for communion as well as the souls of the entire congregation.
Thus, while Canon 916 directs the individual to ascertain his or her own suitability for the Eucharist as a general matter, Canon 915 directs affirmative withholding of communion in certain circumstances. The Church places original responsibility on each individual, generally assumes good faith on the part of congregants, and, thus, ordinarily offers communion to all who come to the altar at Mass. The Church, however, always has retained and sometimes has exercised the power and obligation to deny admission to Holy Communion when scandal to the faithful would occur because of the public character of the Eucharist and the notoriety of the supplicant.
In the case of the pro-abortion politician, the danger of scandal to the faithful is manifested precisely from his or her public behavior. Thus, the public witness of the Church for life, the public repudiation of a pro-abortion politicians of the Church's witness, and the rules for admission to the Eucharist are interwined. The political effect of withholding of communion from politicians who break communion with the Church, whether segregationists in the 1950s or pro-abortion politicians today, is, to be sure, not the primary or animating purpose of the ecclesial action, but neither is it unintended or incidental, as it bears on the avoidance of scandal and the Church's public witness. (Although I may address it in a future posting, I deliberately have limited this posting to the question of the Catholic politician rather than the Catholic judge, as the judicial role raises further complications.)
Below I set forth an excerpt from an article that I wrote with my University of St. Thomas colleague, Charles Reid, that was published last fall in the Catholic Lawyer. [Please note that this is only an excerpt of a larger work, that addresses other elements of this question, and that I have omitted the footnotes. The full article may be accessed at this link
* * *
Excerpt: Gregory C. Sisk & Charles J. Reid, Jr., Abortion, Bishops, Eucharist, and Politicians: A Question of Communion, 43 Catholic Lawyer 255, 84-87 (2004):
"Canon 915 of the Code of Canon Law, which states the bases for denial of admission to Holy Communion, sets forth four signals of the nature of the sin justifying pastoral action: (1) obstinacy, (2) persistence (sometimes translated as “perseverance”), (3) manifestness, and (4) gravity.
First, the sin is obstinate if the person, despite the objective wrongfulness of the proposed conduct through the Church’s teaching or the intrinsically evil nature of the act, nonetheless is adamant in carrying through with the deed. Thus, as discussed above, pastoral teaching and counseling ought to precede any resort to denial of communion, so as to ensure that the person involved has been instructed in the Church’s unswerving solicitude for innocent human life and how this relates most forcefully to legal protection of the unborn. If, however, the person refuses or is unaffected by pastoral counseling, the inherent evil of abortion leaves no room for the plea of ignorance as to the wrongfulness of the destruction of the unborn. In any event, it can hardly be doubted that the Church’s teaching on this issue has been clearly and regularly stated, leaving no one confused as to where the Church stands.
Second, a person persists or perseveres in sin when the wrongful act is part of a pattern of behavior, that is, it “endures in time.” With respect to a politician, then, the question is not one of maintaining some type of “score-card” or evaluating each individual legislative vote on abortion in isolation. Rather, the question is whether the politician has welded in public life an unbroken chain of support for abortion rights and opposition to measures to restrict abortion on demand. Still, a politician may not excuse a consistent “pro-choice” voting record by protesting that the right to abortion is constitutionally fixed and thus he or she is a helpless spectator on the matter. As Pope John Paul II wrote in his Encyclical Evangelium Vitae: “[W]hen it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and lessening its negative consequences at the level of general opinion and public morality.”
Third, the sin must be manifest before withdrawal of communion is directed. The word “manifest” could either be read to modify the gravity of the sin, that is, meaning that the gravity of the sin must be obvious, as having reference to the public nature of the sin, or both. To the extent that it is an adjective attaching to the gravity of the sin, the manifest evil of abortion, and the legal regime that licenses it, has already been discussed in the first point above. To the extent that it may be argued that it is a qualifier as applied to this situation, that is, that the wrongness of supporting abortion rights is different in kind from the evil of directly procuring an abortion, that point is discussed next. In the context of politicians and abortion, the word “manifest”—having a plain meaning consistent with scriptural use of being visible and evident—implicates the public nature of political advocacy or political action. As Cardinal Joseph Ratzinger wrote to the American bishops, a politician’s cooperation with this evil is made manifest by “consistently campaigning and voting for permissive abortion and euthanasia laws.”
Indeed, it is that very public aspect of a Catholic politician’s rejection of fundamental Church teaching that so poignantly creates scandal for the faithful. As the Pontifical Council for Legislative Texts declared, “the reception of the Body of Christ when one is publicly unworthy constitutes an objective harm to the ecclesial communion; it is a behavior that affects the rights of the Church and of all the faithful to live in accord with the exigencies of that communion.”
Fourth, the sin must be grave, that is, a weighty matter and not a small step aside from the narrow way of salvation. It cannot be gainsaid, and indeed canon law is emphatic on this point, that procuring an abortion is a matter of grave sin. Is a political act that facilitates a deluge of abortions of the same kind and degree? Certainly, it cannot be doubted that for the politician who effectively if not explicitly advocates abortion rights as a positive social good, welcoming endorsements from entities that are directly involved in performing abortions, the advocacy and the manifestly grave evil that is certified are closely tethered together. For a politician who professes reluctance and hesitation about abortion rights, but has not yet fully embraced the mission of protecting innocent human life, the pertinent question will be the sincerity of expressed concerns, as manifested by clear public statements and concrete actions that work against the culture of death, as well as evidence of a continual progression toward more affirmative support for unborn life.
In sum, when a public official uses political power to facilitate the annihilation of the unborn, or deliberately and calculatedly refuses to exercise governmental authority to prevent it, the argument that Church discipline should attach is a quite plausible, if not ineluctable, interpretation of canon law. Indeed, if each individual is free to claim Catholic affiliation when comfortable or advantageous, while assuming a license to emphatically and publicly reject Catholic teaching when expedient, without any fear of rebuke or discipline, then the witness of the Church to the larger society on matters of fundamental human rights could be undone."
Greg Sisk
Monday, July 11, 2005
While the predominant Christian influences upon the early years of our nation are commonly recognized, and while some regularly call for a return of the "Christian Nation," a thorough examination of both the influences of our Christian faith upon early American law and the reasons for the decline of that influence over the decades has been wanting. A recent article by Regent law Professor Michael Hernandez in the Rutgers Law Review, "A Flawed Foundation: Christianity's Loss of Preeminent Influence on American Law," begins to fill that gap. (Although this article is not available on-line directly, the following link should take you to the article on Westlaw if you have Westlaw access.) [Note: Although the article is included in the Spring 2004 issue of the Rutgers Law Review, that is the most recent edition of that journal and I believe the article has just been published.]
In "Flawed Foundation," as the title suggests, Professor Hernandez does not simply harken for the better days of Christian predominance but thoughtfully and critically examines why Christianity lost its preeminent influence on American law. Professor Hernandez lays the blame squarely upon the Christian faithful who, by reason of conflicts within Christianity were unable to provide a firm foundation, and who, through betrayal of Christ's teaching through inhumanity to Native Americans and tolerance of the evils of slavery left the door open for the influence of secular ideologies.
Professor Hernandez concludes the article with these words:
"The liberties Americans enjoy are directly traceable to the influence of Christian principles. The relatively short-lived nature of that influence does not disprove the truth of Christianity. Rather, as the views of the Founders and early leaders of our nation reveal, not everything done in the name of Christianity fairly and truly reflects the faith. Theological abuses undermined Christianity’s influence on American law and politics. The rejection of a full appreciation of the higher law origins of human law, the mistrust of human reason, the embrace of racism and greed, and the wholesale denial of the basic human rights of people created in God's image, all contradict the teachings of Christ.
A triumphal call to return to America’s Christian past would accordingly be misguided. All Americans should be aware of the extent to which authentic Christianity influenced the founding of this nation, and Christians should proudly affirm that aspect of America's heritage. However, unless and until Christian theorists constructively address the history described in this article, including proposing solutions to the continuing problems caused by our nation's failings, Christianity's influence on American law and culture will continue to wane. Christians are called not to whitewash the sins of our forebears, but “[t]o act justly and to love mercy and to walk humbly with [our] God.”
Greg Sisk
Friday, May 6, 2005
In a posting a couple of places below, Michael Perry refers to a story on National Public Radio about "conservative" Christian law schools, which in a side-bar on the web page previously had listed the University of St. Thomas as among them. (Interestingly, that side-bar quoted the St. Thomas web site in expressing the school's "mission [as] inspired by Catholic social thought, the Catholic Church's historical commitment to advancing social justice, particularly helping those who are most in need of our assistance," a message which doesn't exactly ring in stereotypically conservative tones).
After the inaccuracy of this categorization was brought to its attention, NPR has removed the side-bar on UST from its web page and will be reading the following message from UST Dean Tom Mengler on the air: "St. Thomas is a Catholic law school, and we take our religious identity seriously, but there is nothing 'conservative' about it. The vast majority of our faculty and student body are left-of-center politically, and our faculty includes individuals who are openly gay, who support abortion rights, who oppose the death penalty, and who have worked on behalf of other 'liberal' causes. Far from being politically conservative, St. Thomas is striving to prove that a law school can take religion seriously without ascribing to any political agenda."
One of my colleagues, Charles Reid, put this whole controversy about categories into wonderful perspective: "We need to remember that we are very much in the culture changing business. We are a Christian Catholic law school situated in a highly secular environment. News media, like NPR, will always try to translate the Christian message into a secular framework –- red state vs. blue state, left vs. right, and so forth. Our purpose in being is to challenge these categories. The message of Catholic social thought is clear -– it is to protect the most vulnerable among us (innocent life from conception to natural death); it is to protect human dignity in a wide variety of contexts (in prisons, in immigration centers, and so forth). It is to welcome the stranger and tend to the needs of the poor. It is to be a witness against violence (just-war thought for instance, and the effort to restrain state violence). These are signs of contradiction to the secular media. They will wish to pigeon-hole us. In responding to the secular media, we should not lose sight of who we are; we should not buy into conventional categories; we should be, in short, a sign of contradiction."
And it is that to which we aspire: to be a contradiction to the secular world. We seek to build a diverse academic and faith-based community that transcends secular and political boundaries, thereby allowing unusual cooperative projects and dynamic conversations to emerge.
Transitioning from the ill-founded attempt at political categorization of our institution to the question of what makes such an institution authentically Catholic, let me offer a few personal thoughts as well, in partial response to earlier questions raised on this site (and directed toward Richard Meyers and me) about the legitimacy of a mandatory course that would include Catholic thought. At present, Jurisprudence is a required upper-level course at the University of St. Thomas. While the course surveys the broad range of jurisprudential thought, it definitely does include study of the Catholic intellectual tradition, which typically is sadly in similar courses at most law schools. The faculty presently is considering addition of a foundations course to the first-year curriculum, focusing on integration of faith and values into professional life. Catholic intellectual concepts and social thought presumably would be given significant, but again not exclusive, attention in such a course.
Greg Kalscheur put it very well when he said that Catholic law schools should "be places where the Catholic intellectual tradition is alive and at home -- not imposed on anyone, but present, vital, articulate, and thoroughly involved in the academic conversation that is at the heart of the life of the university." Less eloquently, I simply tell new students who ask me about it that we are always Catholic, but not only Catholic. By that I mean that whenever philosophical foundations or values are addressed, the Catholic perspective will be present, even as other perspectives are also included.
Greg Sisk
Monday, April 4, 2005
During the past quarter-century, powerful, thoughtful, and eloquent dissertations – by such as Richard John Neuhuas, Stephen Carter, and the Mirror of Justice’s own Michael John Perry – have affirmed the proper place and essential role of religious voices in the public square. They thereby enriched intellectual discourse on subjects of public moment. Over that same quarter-century, Pope John Paul II has been the model case example for the religious witness in public life, leaving a broad and meaningful legacy of social action with his catalytic role in bringing about the fall of communism, his fundamental and radical reminder of the innate dignity of each human person, his simultaneously reproachful and hopeful call to western societies to abandon the Culture of Death and build a Culture of Life, his heart for the poor and disenfranchised, and his words of peace in a troubled world.
Still, more work obviously remains to be done, as secularist societies and institutions continue to be uncomfortable with and insistent upon diminishing the religious element in public life. After the death of John Paul II, United Nations General Secretary Kofi Annan said: “Quite apart from his role as spiritual guide to more than a billion men, women and children, he was a tireless advocate of peace, a true pioneer in interfaith dialogue and a strong force for critical self-evaluation by the church itself.” No, that’s exactly backwards. Pope John Paul II engaged the world, and provoked the world in turn to engage with the Church and its teachings, not “quite apart from his role as spiritual guide,” but quite precisely because of it. John Paul II, the vicar of Christ and heir to Peter in the apostolic succession, and John Paul II, the social and political activist, were always and inextricably one and the same.
Greg Sisk
