JULY 2, 1999  

State of Flux
Court's Rulings on Sovereign Immunity Leave Little Reason for Celebration

        By John Burton
        The U.S. Supreme Court term ended just before the Independence Day holiday, allowing the justices and their law clerks to enjoy barbecues and fireworks with minds free from the weight of pending decisions. Unfortunately, this year they left our minds burdened with concern about the ramifications of the instantly infamous trio of "sovereign immunity" cases.
        The majority opinions in
 College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 99 Daily Journal D.A.R. 6359, Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 99 Daily Journal D.A.R. 6371, and Alden v. Maine, 99 Daily Journal D.A.R. 6329, all decided June 23, reject the ideals of the Declaration of Independence - a perverse salute to the last July 4 of the millennium.
        The Declaration of Independence and the U.S. Constitution are products of the Enlightenment, a period from about the beginning of the 18th century until the late 1780s. The Enlightenment was the philosophical and political outcome of the extraordinary scientific advances that over the previous two centuries had fundamentally altered the conception of the universe and humanity's role in it.
        Fascinated with the power of thought, the great figures of the Enlightenment - and their devoted followers among the nation's founders - generally believed that reason was capable of resolving the problems that had troubled mankind for ages and of improving the human condition. Among the great tasks of reason, according to the Enlightenment thinkers, was to establish equality by eliminating feudal privileges, and to secure for all their inalienable rights to life, liberty and the pursuit of happiness.
        These are the ideals that Independence Day commemorates, and yet they are the very one the Supreme Court majority - Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor, Clarence Thomas and Antonin Scalia, their intellectual leader - hold in contempt.
        Take the majority's despicable treatment of James Wilson, a Pennsylvanian who signed the Declaration of Independence, helped draft the Constitution and served as one of the Supreme Court's first associate justices. George Washington called Wilson "as able, candid, and honest a member as any in Convention." The National Archives and Records Administration Web site's founding fathers' page described Wilson's influence as "probably second only to that of [James] Madison."
        Wilson enters this debate, a full 200 years after his death, because Justice David Souter, the intellectual leader of the four dissenters, relied on him to refute the majority's assertion that "the sovereign's right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution."
        "Sovereign immunity," according to Wilson's opinion in
 Chisolm v. Georgia, 2 Dall. 419 (1793), "is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. ... The principle is, that all human law must be prescribed by a superior. ... [A]nother principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the consent of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man."
        "With this rousing conclusion of revolutionary ideology and rhetoric," Souter wrote, "Justice Wilson left no doubt that he thought the doctrine of sovereign immunity entirely anomalous in the American Republic." He could have added that the doctrine is equally anomalous with the Enlightenment ideals on which the founders erected the Republic, and sounded the tocsin for a new epoch of world history, one in which feudal privileges no longer stood in the way of social equality.
        What does the Supreme Court majority feel about Wilson's rousing revolutionary ideology and rhetoric? Nothing but disdain. Kennedy wrote in
 Alden: "Wilson ... expressed a radical nationalist vision of the constitutional design that not only deviated from the views that prevailed at the time but, despite the dissent's apparent embrace of the position, remains startling even today."
        Even more disturbing is Scalia's majority opinion in
 College Savings Bank. He singled out Souter's dissent in Alden as "despoiling our northern woods," in other words, worth not even the paper it was printed on. Scalia claimed that the United States was established by people "whose north star was that governmental power, even - indeed, especially - governmental power wielded by the people, had to be dispersed and countered."
        Scalia's expressed rejection of democratic ideals echoed Robert Bork's "Slouching Towards Gomorrah." Bork, who came within a handful of votes of joining Scalia on the court instead of Kennedy, wrote, "The proposition that all men are created equal said what the colonists already believed, and so ... equality became 'the single most powerful and radical force in all of American history.' That is true and ... it is also profoundly unfortunate."
        The majority of the Supreme Court finds "startling" the notion that the people, and not the states they erect, are "sovereign," while their ideological cohort Bork finds the struggle for equality "unfortunate." I do not agree with either position; I wager that most Americans do not either.
        John Burton is a Pasadena civil rights attorney.