Your Next Government? From the Nation State to Stateless Nations by Tom W. Bell

Author:Tom W. Bell [Bell, Tom W.]
Language: eng
Format: epub
Publisher: Cambridge University Press
Published: 0101-01-01T00:00:00+00:00

4 Commentary on Governmental Immunity, Pro and (Mostly) Con

A long and distinguished line of academic commentators has disparaged governmental immunity, often in tones of incredulity, dismay, and outrage. They have condemned it as “the antithesis of government by consent,”59 complained that it “turns human rights protection on its head, protecting the government against the citizenry rather than the reverse,”60 and worried about “the adverse effects of sovereign immunity on courts’ capacities to provide individual justice.”61 Commentators have called it “a repugnant doctrine, at odds with the most basic precepts of the American Constitution,”62 and an “unwanted and unjust concept.”63 They have bluntly concluded that it “must go.”64

Akhil Reed Amar thundered that in creating and sustaining governmental immunity, the Supreme Court “misinterpreted the Federalist Constitution’s text, warped its unifying structure, and betrayed the intellectual history of the American Revolution that gave it birth.”65 Donald L. Doernberg devoted an entire book to arguing that sovereign immunity does not comport with the rule of law and violates the Lockean principles on which the United States was founded.66 Some authority weighs in favor of the governmental immunity, of course – academia would be a poorer place without such dissent – but even its staunchest defender chides the doctrine for a lack of “coherent justification.”67 Many more commentators regard it with skepticism if not scorn.

Doubtless because it represents established law in the United States, judges have not criticized governmental immunity with anything like the same passion. The Supreme Court has noted the legislative branch’s “disfavor of the doctrine of governmental immunity from suit,” as evidenced by the passage of laws waiving the privilege, and has followed the lead of lawmakers by construing such waivers liberally.68 Dissenting from what he regarded as a deviation from that policy, Justice Stevens went further still, decrying governmental immunity as “nothing but a judge-made rule” and “a persistent threat to the impartial administration of justice.”69 For the most part, however, government judges find little to criticize in governmental immunity. (But then again, it bears noting that the doctrine directly benefits judges by protecting them from civil lawsuits.)

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