It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [88]
If the King found that the claim against him was legitimate, then he authorized courts to hear the claim, with the attorney general representing him as a party. These are the antecedents of what we now know as judicial petitions; lawsuits against the government, heard and decided in a court of law. Gradually, the requirement of formal consent withered away, and the King lost the right to say when and if the government could be sued by virtue of judicial doctrine (the King himself would never have voluntarily agreed to such a large-scale waiver of immunity). Thus, historically the government and its officials were not above the law, but held accountable to it. In addition to accountability to the people, judicial petitions have the essential benefit of ensuring that disputes between individuals and the government are resolved by a neutral arbiter. As James Madison proclaimed in Federalist No. 10, “No man is allowed to be a judge in his own cause.” Every child knows what happens when you get to cut the pie and choose the first piece. Eventually, the King lost that right.
147
Judicial petitions became especially important in early America because, as James Madison suggested in the statement above, individuals distrusted legislatures and favored the neutrality offered by an independent judiciary. In fact, the need for courts unbiased in the government’s favor was one of the primary reasons for the creation of the judiciary as a separate branch of government: The Founders recognized the danger of the government being a judge in its own cause. The Chief Justice of the Virginia Court of Appeals once summarized the proper role for courts:
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.
148
“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