Has the time come to repeal the Eleventh Amendment to the US Constitution?
In case you don’t know, this deals with the sometimes horribly unfair doctrine of sovereign immunity. I know prosecutors enjoy something similiar called prosecutorial immunity. Basically US prosecutors can murder, lie, steal and pillage, as long as they do it under color of law. Disgusting, no?
Actually, for those purists among you who make an argument for it, we can also do something like what Canada did in their constitution. Don’t do away with it altogether, just limit it (in this case avoiding situations where public order may be compromised).
Yeah, I know you rarely hear about this subject anymore. But I do feel strongly about it (I even started a petition here, with MoveOn.org). I realize the power of this amendment has been limited by the argument it is a right the sovereign can waive, like any right. But I don’t believe the amendment should even exist to begin with. And I worry conservative judges may argue against this even.
First, the 11th Amendment deals with a specific type of sovereign immunity. Specifically, it specifies that states are immune from being sued by citizens of other states or foreign countries. It doesn’t deal with the federal government, nor does it deal with states being sued by their own citizens. Here’s the text of the 11th Amendment:
Second, the principle of sovereign immunity does not derive from the 11th Amendment. It derives from common law. In other words, it’s essentially a long-standing tradition of law that governments can’t be sued by their citizens, unless they give permission to do so. So repealing the 11th Amendment won’t get rid of sovereign immunity. It will just make it possible for citizens of (for example) California to sue the State of New York. Citizens of (for example) California will still have the same limits on their ability to sue the federal government or the State of California.
Third, prosecutorial immunity does nothing like giving prosecutors the ability to “murder, lie, steal and pillage, as long as they do it under color of law.” Here’s a link to the case of Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1893). I’d suggest that you read that case because it does a good job of laying out the justifications and bases of prosecutorial immunity. In short, there are two kinds of prosecutorial immunity: absolute immunity, and qualified immunity. As stated by the Court in Gray, absolute immunity is limited to “initiating a prosecution and in presenting the State’s case.”
Qualified immunity is an affirmative defense, and protects the defendant/prosecutor only if he/she can show that his/her actions “did not contravene clearly established statutory or constitutional rights of which a reasonable person in his position should have known.” In other words, you don’t get prosecutorial immunity for murder, stealing, or pillaging. (There may be prosecutorial immunity for lying in the course of presenting the State’s case, but that’s debatable.)
The doctrine of sovereign immunity has been limited in the U.S. For example, Congress passed the Federal Tort Claims Act. Under the FTCA, “[t]he United States [is] liable . . . in the same manner and to the same extent as a private individual under like circumstances, but [is not] liable for interest prior to judgment or for punitive damages.” 28 U.S.C. § 2674. There’s also a Tucker Act, which waives federal immunity for claims arising out of contracts in which the U.S. is a party. And (I believe) every state has its own version of the FTCA, which waives the state’s immunity for tortious acts.
Notably, even before those acts were passed, private citizens could get redress for injuries caused by the government under what were known as “private bills.” The FTCA was intended to make that process of gaining redress easier and less onerous.
I’m not sure what you’re talking about here. Are you suggesting that a conservative judge would refuse to enforce a Constitutional amendment repealing the 11th Amendment? Or that conservative judges would refuse to enforce statutes limiting sovereign immunity? Because the FTCA and Tucker Act seem to still be going strong. Can you clarify?
Further, the 11th Amendment only applies to suits in Federal Courts - it does not apply to suits brought against states in state courts.
By the way, Jim B, can you point out what part of Canada’s Constitution you think is relevant to the discussion, rather than just linking the entire Constitution Act, 1982? What section are you meaning to refer to?
But states can assert sovereign immunity in cases brought against them in their own courts.
It would be reasonable to say that the 11th Amendment bars the use of the federal courts as a way around the sovereign immunity of states. Indeed, I think that’s what it was intended to do.
I have to admit, I was just assuming. But if you read the actual amendment, it goes
IANAL, but I just thought some conservative judge would read that to mean, the judicial power of the US shall not extend to "any" suit. I have to admit, I was just assuming. I didn’t actually read this somewhere. But that is what it says, though.
I thought this section of the Canadian Constitution is relevant:
That at least is my interpretation of it. I also have to admit I haven’t looked at the Canadian constitution for some time. And I was basing my assumptions on what I once read.
**
Tom Tildrum** has already addressed this point very well.
Not sure what “that” you’re referring to.
If you’re asking who thought the 11th Amendment was a good idea, well, the answer is Congress and 13 (of the original 15) states.
If you’re asking who thought suing other states in federal court was a good idea, the 11th Amendment appears to have been a reaction to the case of Chisolm v. Georgia, 2 U.S. 419 (1793). In that case, a citizen of South Carolina sued the State of Georgia for payments owed in connection with supplies during the Revolutionary War. The U.S. Supreme Court ruled that citizens could sue other states in federal court, since they weren’t subject to that state’s sovereign immunity.
I understand the 11th to be a protection for the citizens of the states against federal intrusion in court cases. Honestly, though, I don’t really understand it. Will someone who has specific evidence of the historical situation of the time, shed some light on this, because it seems like it specifies, “federal courts, keep out of state affairs”, in which case that would be be good, wouldn’t it, what with all of the federal intrusion we seem to have in our lives. I mean, I’d love to repeal the 16th amendment, but only if we could limit the states from overtaxing us.
It’s not “federal courts, keep out of state affairs.” It’s “federal courts, keep out of affairs between states and citizens of other states.”
The passage of the 11th Amendment was a direct result of Chisholm v. Georgia, in which the US Supreme Court ruled that federal courts had jurisdiction over suits against states by citizens of other states based on Article III, §2 of the Constitution.
In effect, it removed “between a state and citizens of another state” from Article III.
Thanks for the clarification. First, the context of federal court jurisdiction in Canada is completely different than in the US. The provinces can’t be sued in Canada’s Federal Court. There’s no equivalent to diversity jurisdiction and no equivalent to the 11th Amendment.
Second, my understanding is that even if the 11th Amendment bars suits in federal court against the states, the principle of sovereign immunity doesn’t extend to state officials, so you can sue state officials (e.g. prison wardens, the state Attorney General or Governor) in federal court, so as a practical matter, sovereign immunity is not much of a bar to seeking relief against the states in federal court.
Third, in Canada the provinces do have sovereign immunity for matters other than constitutional law. Section 24 only applies to constitutional remedies, not ordinary civil law matters such as contract and tort claims. Now, as practical matter, the federal and provincial governments have passed statutes waiving sovereign immunity, but that is a matter of legislative policy, not tied to s. 24.
I think we’re on the same page there as well - in Canada, the general rule is that in civil actions against the Crown, a plaintiff can get damages but not an injunction. Is that how it works in the US? (aside from that “Crown” thingie, of course ;).)
As for the “purists,” they are beneficiary’s of immunity in some way. Their “over-deterrence theory” is just that, “theory” and is uncogent to rule as law.
Anybody who analyzes the doctrine of immunity without its History, paper trail to the dark ages, and the use of basic logic from Aristotle, cannot be taken serious in the discussion. This is because “state immunity is a description of violation of human rights.” Thus, uncogent, or unsound policy, like the 11th, harms humans under the elements of discrimination, cannot be made law! Purists that support it where Hitler, Stalin, etc…
First of all, " Age Quod Agis, is following a pattern of conduct used by defenders of immunity, or prosecutors, and that is “fundamentally misconstruing facts.” It is the use of fallacy persuade those who are not are of a subject matter.
As a victim of abuse of power for reporting criminal violence against a friend of the D.A., we witnessed “Free Speech retaliation” that would not have happened, “but for” our objections, (see “but for test” S. Ct). We saw this same D.A. do it to another man, John O’Sullivan, as the D.A. ignored O’Sullivan’s rational calls for police, because the perpetrator was a “retired Sherriff,” who the D.A. was favoring, and this is called “arbitrary classification” which is illegal unless the D.A. can provide a rational basis.
Not one individual here, especially Age Quod Agis, has a clue what this doctrine is. For instance, I will not waste much time on Agis’s seemingly knowledgeable use of citations, but his statement, " It doesn’t deal with the federal government, nor does it deal with states being sued by their own citizens," The 11th, amendment is “Constitutional” federal law, and it deals with Sovereign immunity for Federal and State, and Qualified immunity for local gov., See Monell v. New York, or Bogan v. Scott Harris, inter alia.
For instance, Hans v. Louisiana in 1890 turned the amendment meaning completely upside down, stating that “citizens cannot sue their own states,” means exactly that of the original verbiage. So This guy Agis, fails miserably, yet creates a treatise of dicta that would full any fool.
I cannot comment on Agis any further, as I am ashamed by this rhetoric, as his use of or should I say misuse of, deceives the masses into accepting paradigm reality that mostly ended with the inquisitions after Copernicus destroyed Ptolemy’s junk religious science that birthed the “doctrine of immunity” required to justify atrocity as “self righteous” entitlement from Divinity. Those of you who follow the “non sequitur” logic of Agis, are no different from Witch Burners, inquisitors, or Adolf Hitler, whose rise in power could only be allowed through 11th amendment type immunity, once he took power.
The 11th amendment cultivates corruption, and the over-deterrence theory admits this cultivation, in the same breath those who benefit by it, defend it with nonsense, unproven theory. Never has a nation, ruled without the Doctrine of Immunity, with exception from the United States from 1776 until 1795 when the Doctrine was ratified, so how can they possibly know that without immunity, a nation would colapse. I encourage you to read about “extractive institutions” in a new book called “why nations fail.”
Sorry for missing this back when you first wrote it. Actually, I think it’s the other way around in the US. One can in effect sue states for injunctive relief by naming relevant state officials in their official capacity, but one cannot sue for damages in this way.
That “crown thingy” is and solely the authority that defines the word “sovereign.” So, there ya go, USA officials by manipulating and misconstruing fact, have created for themselves a crown to claim “sovereign immunity,” a delusion of grandeur made into reality for public officials, ironically the so called democracy has no knowledge of this, and when they are presented the idea, they cannot look up simple words in the dictionary to see where they belong.
Definition of SOVEREIGNTY
1
obsolete: supreme excellence or an example of it
2
a: supreme power especially over a body politic b: freedom from external control : autonomy c: controlling influence
3
: one that is sovereign; especially: an autonomous state
See sovereignty defined for English-language learners »
See sovereignty defined for kids »
In 1999 the supreme court stated USA is a sovereign government, explained below, and nobody objected.
IN the US you can get injunctions, even against judges, because immunity is only for personal liability suits, but according to the S. Ct. Bogan v. Scott-Harris, they mention, allude to, that immunity is for protecting public employees whose decisions that affect “wide reaching” citizens’ in policy, and not individual abuses, that are limited to singling out individuals.
For a good explanation see Kaahumanu v. City of Maui 9th 2005, and More recent Ninth circ. see, Norse v. Santa Cruz 2010, and the S.Ct. rejected county appeal, so it stands, that “ad hoc” decisions that deny property rights or use of intangible services, that do not affect the rest of the community, abrogate immunity.
Problem is, only Maui and Santa Cruz has been told this, and even if they ignore this, in the future, there is no deterrence to keep counties or judges from ignoring precedence. When they abuse discretion it is not punitive, only “reversible error.”
So what do we do? We have to end the 11th amendment, because it is their basis to deny the First Amendment right to redress. That alone is suspect. How can one amendment be used to over-rule another one, and still be a “constitution?” Bogan v. Scott-Harris in 1998 said that “even if corrupt…the law will not tolerate a citizen redress…” Well, there ya go! No First Amendment, due to the 11th amendment.
I have sued in federal court our county. What the fed court did, was to use a non article III judge to abuse process, and give the Article III judge plausible deniability for the abuse done by the Magistrate. What proof do I have? The Court record, res ipsa loquitur. I alleged a first amendment retaliation claim, which was a “prima facie claim” supported by judicially noticeable evidence provided by the state itself, a “state senator” with his seal. But the defense ignored that claim and substituted it for another premise found in dicta, that was clearly not the “substantial motivating factor” of our claim. In fact the first amendment claim was stated…and we alleged, “it was the SUBSTANTIAL MOTIVATING FACTOR.” Therefore, after 3 years of objections were ignored, it was obvious that we were undergoing a “mock trial” by a magistrate through “Judicial Tyranny” identified by the Declaration of Independence as a “right inestimable and formidable for tyrants only.”
So you see, today, Sovereign power is not democracy, and democracy can only stand alone! Put Sovereignty in the picture, and you have a King or Queen, elected every 2 or 4 years, but immune by sovereign divine right, a religious dogma, and that violates seperation of church and state, and that is not a slippery slope. Sovereign means a King or Queen! It does not refer to a democracy.
In 1999, the Supreme Court ruled against an author of the writing, in charge of framing the Constitution, James Wilson, who spoke as a Supreme Court Justice stating, “as an author of the document…to the constitution the word sovereign is totally unknown.” Eye witness, according to the evidence code can convict murderers to death! Justice Souter, 35 times referenced Chisholm v. Georgia 1793, where Wilson, as an eye witness, stated it was a “perversion of genus species,” to ignore the patriots of the revolution who gave their lives so that “sovereignty” was banned from the USA, the citizen reward for their sacrifice brought on by risk of committing treason against a tyrant King George III.
Okay, what are you who are making up your own opinions about the 11th amendment not getting?
Our supreme court is a band of traitors who insist that the USA is governed ultimately under sovereign rule, see Alden v. Maine 1999! Democracy or our fallacy belief that we are a democracy in the USA is only supported by those whose intelligence ability is not able to discern simple fact, or follow a paper trail that is indisputable. What is to gain? Forgiveness from negligence and corruption, an inequality between public and private citizens, that again ruins the 14th amendment, because inequality cannot be tolerated, according to the 14th amendment. If you want the 11th amendment, at least remove the 14th, because the Constitution only uses the word equal a few time, regarding the share of votes in houses of government.
Exactly, however, the consensus is, from a former site, “disparate treatment of pro se litigants,” Sean Harrington, courts are misconstruing facts of cases and dismissing them, even if they show facts where officials abrogated immunity.
Eastern District Court Sacramento case 2:08-cv-02269-kjm-EFB Magistrate, ignored 28 USC 636(b)(1)(a) and ruled on an injunction dismissing it, without the authority to do so. “a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief,…”
So even if you can sue or not, the courts are ignoring the complaints and fixing the malice of officials who should be indicted in the first place.
Bogan v. Scott-Harris states that “if corrupt…the indict them.” However, judges are thinking of their careers and barring citizen redress under the 11th amendment, no matter what it actually means.