"In America, the law is king." This one line is, quite simply, the single background principle upon which America was founded. It is the very idea that made the United States unique, interesting, and great. This is America's gift to the world. This is also, sadly, simply no longer true in law, in politics, or in media. When we talk about self-government, the conversation must start here, and this principle must underlie all discussions about holding the powerful accountable. It simply must, but it does not. The jurisprudence of the 11th Amendment, the lack of the political will to prosecute political officials for torture or warrantless domestic spying, and the media and popular reaction to Wikileaks all depict an American polity for whom this principle is not merely relegated to the sidelines, but for whom it exists only in the faintest wisps of memory of a fifth grade civics textbook.But where says some is the king of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is. --Thomas Paine, Common Sense
I want to illustrate in this post how all the different sections of civic life: law, politics, media, and popular sentiment have embraced a vision of America radically different from anything Thomas Paine might have written over 200 years ago.
11th Amendment:
Most of you probably have no idea what the 11th Amendment says, but that's ok, because neither do any of the Supreme Court Justices. Here's the text:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.Through a long, winding series of weird and textually unmoored holdings, the Supreme Court has essentially held that this means states enjoy full sovereign immunity and may not be sued in any court, state or federal, unless they consent. The way we got to that point is interesting and maddening, and illustrates how the field of law no longer operates under the assumption that "the law is king."
The whole fight actually began in a 1793 case called Chisholm v. Georgia, in which four of the five Justices sitting at the time, a mere four years after the ratification of the Constitution, ruled that a state did not have sovereign immunity because, logically enough, we have no sovereign. The whole idea of sovereign immunity in England was that to drag the King in front of his own Court would be an affront to the dignity of the crown. If you believe Thomas Paine, this principle is simply inapplicable in America. Four of five Justices, including Justice Wilson, who wrote Article III of the Constitution (which defines the judicial power), said exactly this. This caused what is referred to in the literature as a "shock of surprise" throughout the nation, and they essentially passed the 11th Amendment within a year to overturn this case.
Fast forward to 1890 and Hans v. Louisiana and you get the first detachment from the text, saying a citizen of a state cannot sue within his own state even though the 11th Amendment says "against one of the United States by Citizens of another State." The reasoning in this case was that there were background principles of sovereign immunity, and the 11th Amendment was just written that way to overturn the specific facts of Chisholm, but really applied more broadly. Fine, I guess I can understand that, even if I think it's wrong. However, once we get into "background principles," it just goes downhill from there, and here is where we start to see the disturbing parts.
Then we get to modern doctrine and you get two cases which take the 11th Amendment and essentially make it irrelevant in favor of absolute state sovereign immunity. First came Seminole Tribe v. Florida (1996), which determined that state sovereign immunity was so strong that Congress could, for the most part, not abrogate it, and then Alden v. Maine (1999), ruling that sovereign immunity did not just apply to states sued in federal court, but states sued in state court, which to be honest, I don't understand what the federal Constitution has anything to do with. The reasoning in these two cases was different. In the former, Rehnquist some tortured reasoning about the 11th Amendment, but amazingly, in the latter case, Kennedy simply rejected the 11th Amendment as irrelevant - he pulled the strong principle of state sovereignty basically out of nowhere. His reason for it? It offends the dignity of the states.
It's this last bit that I find the most disturbing. In discarding the 11th Amendment reasoning and embracing dignityGarcia v. San Antonio Metro. Auth. held states as states are subject to federal labor laws, among others). The point here was exactly that five conservative Justices thought the states simply were above the law. This is deeply weird.
Other judicial immunities point out a similar trend. Judges, prosecutors, legislators, and the President all have absolute immunity while performing their respective functions. This means, for example, a prosecutor can intentionally have people perjure themselves on the stand in order to secure a false conviction, and not only will a suit be dismissed - it won't reach the merits. The prosecutor has absolute immunity. (This specific scenario has actually happened before.) There might be good reasons for some immunity, but absolute immunity in any context means that the person is simply above the law.
Politics:
The trend of immunity continues into the political arena. Bush has now admitted that he ordered torture. Cheney has admitted that he ordered torture. These are war crimes. Bush spied on people without a warrant, a crime that carries with it a five year prison sentence per violation. In other words, Bush should be in jail, just from FISA, roughly until the Sun explodes. There are innumerable other crimes committed by people up and down his administration. However, not only are we not prosecuting, but there is no public outcry about it. People say it's just politics, and that he was "just trying to do what's right." And the big companies that aided him? Their response was "we were just listening to the President." So instead of prosecuting them, Congress retroactively gave them immunity. "If you cooperate with the President, you're not breaking the law."
Now we have the Obama lawlessness. The cult of Obama is such that when he announces truly abhorrent things like keeping Guantanamo open or dismissing entire lawsuits on state secrets grounds, many people who decried the same practices under Bush praise or forgive them under Obama. And then he goes farther, ordering the assassination of an American citizen with no due process, and people somehow defend that, saying that we're at war, so literally anything is justified. (To be fair, most don't admit that literally anything is justified, but cannot come up with something that isn't justified once targeted killing of Americans is.) This political immunity is anathema to America, but it follows the trend. Political officials are part of the state, which is now above the law.
Media/Popular Opinion:
Any of the cases here could appear under this heading, because neither the media nor the public cries out about them. Any outcry would change the outcomes of everything else above, and arguably the lack of coverage or outcry causes them. However, this past week's episode with Wikileaks illustrates current popular opinion better than anything else.
First, I want to make one thing clear: Wikileaks' goal is to make government transparent, and to embarrass the government into doing what's right. If Wikileaks is going to have any power at all, it is by shocking the citizenry into action. Isn't this exactly what self-government should be about? If the public's knowledge about what happens causes us to want to change it, isn't that precisely the reason we need to know? That is what is means to rule by consent of the governed. That is what is means that we have no sovereign. In America the law is king. And the people make the laws.
Glenn Greenwald wrote a piece about what the Wikileaks reaction demonstrates about U.S. political culture here, and since it's exactly my point, I'll give the highlights (as usual with his posts, the full post is well worth reading):
The WikiLeaks disclosure has revealed not only numerous government secrets, but also the driving mentality of major factions in our political and media class. Simply put, there are few countries in the world with citizenries and especially media outlets more devoted to serving, protecting and venerating government authorities than the U.S. Indeed, I don't quite recall any entity producing as much bipartisan contempt across the American political spectrum as WikiLeaks has: as usual, for authoritarian minds, those who expose secrets are far more hated than those in power who commit heinous acts using secrecy as their principal weapon.He then starts the next section:
First we have the group demanding that Julian Assange be murdered without any charges, trial or due process. . . . Then, with some exceptions, we have the group which -- so very revealingly -- is the angriest and most offended about the WikiLeaks disclosures: the American media, Our Watchdogs over the Powerful and Crusaders for Transparency. . . . [L]ike the Good Journalist he is -- [Wolf] Blitzer demanded assurances that the Government has taken the necessary steps to prevent him, the media generally and the citizenry from finding out any more secrets: "Do we know yet if they've [done] that fix? In other words, somebody right now who has top secret or secret security clearance can no longer download information onto a C.D. or a thumb drive? Has that been fixed already?" . . . It's one thing for the Government to shield its conduct from public disclosure, but it's another thing entirely for the U.S. media to be active participants in that concealment effort.
Then we have the Good Citizens who are furious that WikiLeaks has shown them what their Government is doing and, conversely, prevented the Government from keeping things from them.Indeed, 51% of Americans believe Wikileaks committed treason (not to mention that its founder, Julian Assange is incapable of treason against America, being Australian), and many more simply disapprove of the leaks.
I feel like most of this post is rehashing old things. But I think taken together, all these bits have been gnawing at the center of a lot of American law and politics since the advent of the Cold War. We've been looking to our leaders, particularly the President to Keep Us Safe. America has become a child that wants his Daddy. As the quest to Keep Us Safe has gotten harder, we ask Daddy to protect us more. That is now how we conceive of government. The conservatives have convinced everyone that government is good for nothing, except they all want a huge military budget, in order to Keep Us Safe. We'll even tolerate TSA agents groping ourselves and our families because that is how we stay Safe.
This authoritarian mentality has morphed into a view the state, not as an extension of the People, but as above the People, and thus above the law. This mentality has gripped the conservatives on the Court, and now seems to have majority support throughout the media and the country. I am going to make an originalist plea here. Look back at what Thomas Paine called "common sense." Look back and realize that no man and no collection of men is above the law. We have no king. Just because we elect someone new every few years does not mean he is an elected king. In America, the law is king. I really want to shake each and every person until they remember this point and learn to embrace it again. I have no idea what else to do.
