It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [90]
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More fundamentally, sovereign immunity dictates that the government is superior to the people, since it is not accountable to the law. As we have seen elsewhere in this book, this violates the Natural Law by suggesting that the temporal (in this case, a man-made government) is superior to the immutable principles of nature. And although the government claims that sovereign immunity is a public necessity, this is a hopelessly subjective term, and the government’s own actions demonstrate this claim to be false; when government does consent to being sued, it is always because of the public outcry at the heinousness of individuals being left without a remedy, not because immunity is somehow less necessary. Why else would the Congress amend FSIA to include terrorism-related claims against foreign governments? And even if it were important not to draw down upon the public coffers and distract officials from their duties, how could it be rationally argued that this is an evil worse than the transgressions of the Natural Law which are facilitated by sovereign immunity?
Why then does the government insist upon sovereign immunity? The answer lies in what St. Augustine referred to as libido dominandi, the lust to dominate, or in other words, a desire to exert control over others. As St. Augustine described, there are two cities; the realm of God (the divine), and the realm of man (the earthly). He noted that “the two cities have been formed by two loves: the earthly by the love of self, even to the contempt of God; the heavenly by the love of God even to the contempt of self.” We experience this on a daily basis when we initiate an argument with our loved ones; we do so not because there is a dispute that genuinely needs to be resolved, but because we lust for the feeling of “winning.”
So, too, our politicians, though they may claim to have our best interests at heart, are corrupted by this human desire for power. Moreover, a position of power only facilitates libido dominandi, because one can so easily forget that he is supposed to be the servant of the people and not their master. An excellent example of this corruptive nature of power is the Alien and Sedition Acts; although our Founders enshrined a right of free speech, those same men later enacted an outrageous law punishing those who criticized the government, a direct contravention of that right. Thus, even the men who promised future generations liberty in perpetuity were not immune from libido dominandi.
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Not being held accountable to the law—in the form of immunity from a lawsuit—is extraordinary power. After all, the law not only endeavors to restrict individuals from taking actions which are harmful to others, but seeks justice; the promise that those who do in fact break the law and harm others will have to suffer the consequences, or in other words, that wrongs will be made right. When one escapes justice, he becomes free to trample on the natural rights of whomever he pleases. Thus, there can be no better example of libido dominandi than the government’s evisceration of the judicial petition, in direct contempt of God—the Natural Law. When the government escapes justice, not only are innocents harmed, but the escape establishes a precedent for future governments to do the same. Wilson relied on Lincoln’s assaults on innocents, and FDR relied on Wilson’s, and George W. Bush relied on FDR’s.
“Your Constitutional Rights Are Getting in the Way of Our Unconstitutional Power”
As we have seen, the right to petition imposes a duty on the government to respond to petitions. This is essential to the meaning of the right, and was historically one of the most jealously protected components. Nonetheless, it was abolished during the antebellum era, and has not been restored since. In particular, it stood in the way of a large government, which simply did not have the patience, respect for constitutional guarantees, or inclination to respond to petitions. When asked what ever happened to this fundamental right, courts today will simply respond, in the words of Justice