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By Root 667 0

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.