It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

  The Legislature are to form rules for the conduct of the citizens. . . . The province of the Judiciary [is] to decide all questions which may arise upon the construction of laws or contracts, as well between the government and individuals, as between citizen and citizen. . . . If a contract is entered into on behalf of the government pursuant to an existing law and a contest shall arise about the meaning of the contract, it belongs to the Judiciary to decide what the contract was, and, if the Legislature shall decide the question, they invade the province of the Judiciary, contrary to the Constitution.8

  The ability of the government to be sued in courts of law was therefore not only necessary for government accountability, but also to the doctrine of separation of powers implied in the Constitution’s structure. To violate the right to petition the government in courts of law jeopardizes the integrity of the entire system. Thus at the time of the founding, the Petition Clause included both a right to sue the government and a right to request the government to take or abandon a particular action. Both were based upon the interests in government accountability to the people and the resolution of disputes by a neutral arbiter, and both are essential features of liberty.

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  “You Got Served!!! But Only if You’re Okay with It.”

  Following the September 11th terrorist attacks, family members of the victims filed suit against the Saudi government and four princes of the Saudi royal family. They alleged that the princes had knowingly funded Al Qaeda vis-à-vis the Saudi High Commission for Relief to Bosnia and Herzegovina, a Saudi charity, and thus should be held accountable for the attacks. The relevant statute for establishing whether the Saudi princes could be sued in America was the Foreign Sovereign Immunities Act (FSIA), which creates a presumption of immunity from suit.

  In the case In re Terrorist Attacks on September 11th 2001 (2008), the trial court dismissed the case for lack of jurisdiction. The Second Circuit affirmed the dismissal, ruling that the Saudi government was immune, the FSIA’s protections applied to the princes as well as the government (despite the absence of text in the statute granting government officials immunity), and the charity was acting as an “organ” of the government, thus immunizing it as well. Interestingly, the Act was amended to allow for terrorism-related claims against foreign states. However, the federal government maintains a list of which states remain immune, and which may be sued. Unfortunately for family members of the victims, Saudi Arabia was not on that list of states that may be sued. In other words, those entities could not be held to answer for their actions in American courts because President Bush personally immunized them, and federal law permitted him to do so.

  Now consider that foreign businesses which manufacture some kind of component part can be held liable in American courts if they purposefully targeted the American market, even though those component parts were incorporated into a final product elsewhere. This makes perfect sense: If you expect that your actions may harm someone, you should also expect to be held accountable in the place where the harm is caused. And yet, foreign governments, their officials, and even charities acting on their behalf, are free to fund terrorist organizations that they know are intent on killing innocent American civilians, and still escape responsibility in our courts when their officials are friends of the president.

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  Despite the crucial role which the right to petition plays in our constitutional system, the government has managed to shield itself from judicial petitions via the doctrine of sovereign immunity. Why can the government say when it will be sued and when it will not? What is the basis for treating a government which harms innocent persons differently from businesses and individuals who harm innocent persons? As you may have guessed, sovereign immunity cannot be reconciled with the right to petition the government judicially for redress of grievances: It is the negative of a judicial petition. As we shall see, the doctrine of sovereign immunity has vastly changed from its understanding at the time of the adoption of the Constitution, and in so doing has become one more legal device which government has crafted to eviscerate the right to petition, and therefore escape accountability to the people for its violations of the law.

  The Supreme Court has said that any lawsuit is against the government if a finding for the plaintiff “would expend itself on the public treasure or domain, or interfere with public administration, or if the effect would be to restrain the Government from acting, or to compel it to act.” So long as one of these conditions is met and the government has not specifically consented to be sued, then the government is immune from lawsuits, no matter how severe the violation of natural rights is. How could this be anything but the divine right of kings over the people, which popular sovereignty explicitly rejected, recast in a modern-day form? Moreover, this current state of the law distorts traditional common law, which allowed for suits against government officials and the government itself in some cases. The most well-known common law action against the government—the writ of habeas corpus, which allows for petitioners to challenge the lawfulness of their detention—is even enshrined in the Constitution.

  Interestingly, the original justification for the notion of government accountability to the law was that government is the “fountain and head of justice and equity,” and thus we can assume without further inquiry that the government would consent to having those wrongs redressed. Surely, the government would not mind being sued if doing so would accomplish its true purpose—justly protecting our freedoms. Thus, there can be no legitimate reason why government should remain immune from continuous accountability. Think of the sneaky child with his hand behind his back, whose parents assure him that “if you don’t have anything to hide, then you don’t have to worry about showing me what’s in your hand.”

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  More fundamentally, sovereign immunity dictates that the government is superior to the people, since it is not accountable to the law. As we have seen elsewhere in this book, this violates the Natural Law by suggesting that the temporal (in this case, a man-made government) is superior to the immutable principles of nature. And although the government claims that sovereign immunity is a public necessity, this is a hopelessly subjective term, and the government’s own actions demonstrate this claim to be false; when government does consent to being sued, it is always because of the public outcry at the heinousness of individuals being left without a remedy, not because immunity is somehow less necessary. Why else would the Congress amend FSIA to include terrorism-related claims against foreign governments? And even if it were important not to draw down upon the public coffers and distract officials from their duties, how could it be rationally argued that this is an evil worse than the transgressions of the Natural Law which are facilitated by sovereign immunity?

  Why then does the government insist upon sovereign immunity? The answer lies in what St. Augustine referred to as libido dominandi, the lust to dominate, or in other words, a desire to exert control over others. As St. Augustine described, there are two cities; the realm of God (the divine), and the realm of man (the earthly). He noted that “the two cities have been formed by two loves: the earthly by the love of self, even to the contempt of God; the heavenly by the love of God even to the contempt of self.” We experience this on a daily basis when we initiate an argument with our loved ones; we do so not because there is a dispute that genuinely needs to be resolved, but because we lust for the feeling of “winning.”

  So, too, our politicians, though they may claim to have our best interests at heart, are corrupted by this human desire for power. Moreover, a position of power only facilitates libido dominandi, because one can so easily forget that he is supposed to be the servant of the people and not their master. An excellent example of this corruptive nature of power is the Alien and Sedition Acts; although our Founders enshrined a right of free speech, those same men later enacted an outrageous law punishing those who criticized the government, a direct contravention of that right. Thus, even the men who promised future gene
rations liberty in perpetuity were not immune from libido dominandi.

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  Not being held accountable to the law—in the form of immunity from a lawsuit—is extraordinary power. After all, the law not only endeavors to restrict individuals from taking actions which are harmful to others, but seeks justice; the promise that those who do in fact break the law and harm others will have to suffer the consequences, or in other words, that wrongs will be made right. When one escapes justice, he becomes free to trample on the natural rights of whomever he pleases. Thus, there can be no better example of libido dominandi than the government’s evisceration of the judicial petition, in direct contempt of God—the Natural Law. When the government escapes justice, not only are innocents harmed, but the escape establishes a precedent for future governments to do the same. Wilson relied on Lincoln’s assaults on innocents, and FDR relied on Wilson’s, and George W. Bush relied on FDR’s.

  “Your Constitutional Rights Are Getting in the Way of Our Unconstitutional Power”

  As we have seen, the right to petition imposes a duty on the government to respond to petitions. This is essential to the meaning of the right, and was historically one of the most jealously protected components. Nonetheless, it was abolished during the antebellum era, and has not been restored since. In particular, it stood in the way of a large government, which simply did not have the patience, respect for constitutional guarantees, or inclination to respond to petitions. When asked what ever happened to this fundamental right, courts today will simply respond, in the words of Justice Oliver Wendell Holmes Jr., that “where a rule of conduct applies to more than a few people it is impracticable that every one [sic] should have a direct voice in its adoption.”9 In other words, since the Founders enshrined the great right to petition in the Constitution, the government has taken the stance that the right is simply not “practical” in today’s world of large, complex governmental institutions.

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  The annihilation of the duty to respond has a particularly unsavory history. When the abolitionist movement gained momentum during the antebellum era, activists began petitioning Congress in droves. In essence, abolitionists rightfully saw slavery as oppression and tyranny in their most extreme form, and thus felt a need to petition the government to redress this grievance. One abolitionist stated that “the District of Columbia fastens on the whole nation the guilt of slaveholding. . . . And I hold it the duty of every man in the free States . . . by solemn remonstrance to Congress, to purge his conscience of the nation’s crime.”10 What could be a more righteous application of the right to petition than a demand that human bondage, the ultimate crime, be forever abolished? The right to petition was intended to provide a means for making right those wrongs committed by government, and thus, the abolitionists’ petitions to the federal government were as proper an exercise of that right as any in the annals of history.

  Congress, however, ultimately passed a “gag rule” in 1840 which barred the reception of petitions “praying the abolition of slavery.” Slave states argued that the government could refuse to hear such petitions, because official government behavior was higher than and of a different order from the wishes of the people themselves. Stephen Higginson, professor of law at Loyola University New Orleans, notes,

  [John Calhoun contended that] assemblies would be little more than “passive receptacles” were petitioners’ rights held superior to legislative necessities. Thus, Calhoun supported a sharp demarcation between citizenry and legislators. The right of the former to assemble and communicate opinions to the government ceased upon presentation of a petition; thereafter, the legislative domain was absolute and the assembly had full discretion to interpret and devise its own rules.11

  Thus, the argument against a duty to respond was an explicit rejection of popular sovereignty and the notion that the government should ultimately be answerable to the people as their servant.

  For reasons discussed earlier, we may start with the assumption that the right to petition mandates a governmental duty to respond to those petitions. Without that guarantee, the right would be meaningless, and we could only hope that government was desirous of listening to our protestations.

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  Robert Schulz is a tireless defender of constitutional freedom. As the founder of We the People, he articulated, “The very philosophical premise of the Sovereignty of humans over the governments they create to serve them requires a corollary obligation in the Law to respond, and respond responsively.” Constitutional rights have never been so tenuous as to rest on a mere hope that the government will choose to hold itself accountable to the people. Therefore, to read out the duty to respond from the Constitution is to read out the right to petition.

  Although some may argue that the right is not suitable to current times, this violates a fundamental principle of constitutional interpretation: Chief Justice John Marshall once pronounced, “It cannot be presumed that any clause in the constitution is intended to be without effect.” Thus, every word of every clause must be treated as law. The only process for altering the Constitution is by amendment. If slave states, and the generations of large government proponents after them, wished to do away with the duty to respond to petitions, then they were free to propose an amendment to that end. It should, however, not be surprising that such a proposal has not occurred: As history shows, time and time again such proposals have always failed due to public backlash. Moreover, as history also shows, the government abdicates a duty to respond because it wishes to prevent the people from exercising their sovereignty over it. Thus, for courts to uphold Congress’s refusal to respond to petitions is to violate both the Constitution and popular opinion. Could there be a better example of judicial activism? After the Civil War, the Constitution was quite properly amended to prohibit slavery; but the right to petition was never restored.

  Moreover, the arguments for annihilation of the duty to respond are simply illogical, and misconstrue the very purpose of a constitution. Critics of the obligation, like Justice Holmes, argue that the right is not practical; it hampers governmental exercises of authority. But let us examine exactly what is impractical about the duty to respond. It is impractical because it conflicts with a constitutional assurance of government accountability to the people. Our rights were enshrined in the Constitution so as to restrict which actions government can take. Government cannot then argue that the right to petition should be done away with because it is too, in a word, restrictive. Thus, the entire purpose of our rights is to make unconstitutional government actions “impractical.” Could a basketball player sensibly argue that he should be able to carry the ball because dribbling it is too restrictive? Why can the government?

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  Nor are these mere abstract ruminations. As noted before, the right to petition ensures government accountability to the people. By eviscerating this right, government has been able to grow large and out of touch with the freedom of the electorate, not an unsurprising result given the political philosophy of John Calhoun discussed above. Anyone who feels disillusioned by the Iraq and Afghanistan Wars, health care reform, or government bailouts, can appreciate the purpose that the right to petition serves, and the hypocrisy of government’s claiming that it is impractical.

  More fundamentally, to read out the right to petition because it is impractical does harm not only to that right, but also to our entire constitutional system of government. When we allow shifting attitudes about what is the proper size and scope of government to trump the Constitution, then the Constitution itself loses its entire meaning: It is no longer law. Justice John Marshall Harlan once said that “the Constitution is not a panacea for every blot on the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.” Thus, even if a large welfare state, which of necessity did not have the time or resources to hear all legislative petitions, was genuinely in the public’s best interest, it could not change the fact that it is unconst
itutional, and thus illegitimate. To abolish the duty to respond does violence not just to the right to petition, but to our entire Constitution, and the notion that we are a nation of laws.

  The very idea that the government can pick and choose which parts of the Constitution it will defend and leave other parts unenforced belies the self-evident truth that the Constitution—the entire Constitution—is the supreme law of the land.

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  Rule 11 Motions

  The final component of the right to petition, the proscription of penalties, has also come under attack since our founding. One such device used by the government to punish petitioners is what is known in federal civil procedure as a Rule 11 motion. The rule provides that

  by presenting to the court a pleading . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.

  If judicial petitions, even if made to the government, fail to satisfy this requirement, then a federal judge may punish the petitioner accordingly. When asked how this rule can be reconciled with the right to petition, one of the drafters would simply respond, “There is no constitutional right to make frivolous petitions.”

  Although as a simple matter this rule clearly violates the historical proscription of punishments appended to the right to petition, it is worthwhile to discuss precisely how it infringes upon the right. First, frivolous and well researched are not the same thing. The problem is that Rule 11 only punishes those petitions which are inadequately researched, rather than those which are genuinely frivolous. Consequently, it will punish those petitions which are meritorious, but have not been adequately researched. Imagine, for example, that a government official is caught accepting payments in exchange for awarding subsidies to one particular company. When one business owner in the industry does further research and discovers that he has a claim against the government, he files suit. Having discussed the complaint with a few of his friends who are also business owners harmed by the grant of subsidies to the competitor, they copy the original complaint (a kind of petition, for our purposes) and also file suit. Although they no doubt have meritorious claims against the government, they will face punishment for simply not doing the research themselves. How can this be squared with the Seven Bishops Case, and the understanding at the time of the founding?