Had an interesting conversation with one of the country’s top constitutional law experts this morning. We were discussing the fact that the primary difference between a police state and a democracy is the concept that in a democracy there is no concept of unqualified sovereign immunity. In other words, in a democracy, an independent judiciary is entrusted with providing a forum for oversight of everyone, including the government. When you think about it, the American Revolution had less to do with taxes and soldiers and tea than it did with the inability of the colonists to seek reasonable redress of grievances. It’s only when you have no one to complain to does your sole recourse rest with the musket. I’ve seen the same phenomenon in the War of Northern Aggression. Whether you believe slavery is right or wrong, you can’t deny that from our founding days slaves were property, and property is a right, and the taking of property by government action requires compensation, and when the Courts no longer function, you are left with little recourse or sense of governmental legitimacy.
One of the scary things about both the War on Terror and the War on Drugs is that it has provided a total sovereign immunity to government. As was noted in the Rise of the Warrior Cops, one of the most horrifying aspects of the War on Drugs has been the lack of governmental accountability for those killed by mistake. Equally, there is no recourse in the War on Terror for people, also, who are harmed as collateral damages.
The reason i was discussing this issue with a constitutional expert today is that there has been a scary new trend in the past three years or so. At one time, judges would shake their heads that their hands were tied on wrongful death cases and constitutional law cases arising out of the USA PATRIOT Act. Then the Courts got sort of blase about it. But what we are seeing now is a slippage of sovereign immunity into civil cases, for damages. In a series of cases handed down in recent months, the Courts have ruled that the broad scope of power of government precludes not only injured parties from seeking damages from the government, but also contract damages. In effect, with the legal doctrines of the GWD and the GWT slipping into civil law, these same provisions are now barring citizens from simple redress of grievance, ala 1775.
You can see it in interesting places. Truth is, the Zimmerman trial was a good example of justice doing its work, whether you like the outcome or not. But people still poured into the street to protest and to express their anger. May I suggest that the anger had nothing to do with Zimmerman, or any single specific case in the past five years, but rather a systemic and growing sense that the court system no longer tames the worst impulses of the court system, and that the court system itself is no longer fulfilling its constitutional role to check the errors of government? Because I have a client in that situation, and the frustration and rage has less to do with the particular case, and more to do with a sense that the courts are simply not functioning as mandated. I don’t discuss specific cases in these blog posts and I’m not going to start now, but I can say, as a trial lawyer, that I’m seeing a growing sense that the court system has become an arm of the state, not an independent equitable arm.
Considering that this is how revolutions get started, its an ominous sign.