How Should We Respond to Government Oppression?
Responding to Oppression and the Violation of Natural Rights-Moral, Legal and Constitutional Options
The following is based upon two concepts. The first is constitutional:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The second is a quote of unknown origin but often attributed to Thomas Jefferson:
"When government fears the people, there is liberty. When the people fear the government, there is tyranny."
There is no question that our government in the United States, and socialist democracies the world over, have violated the most fundamental rights of the people they ostensibly serve. Freedom of speech, of the press, religious freedom, the right to be secure in your personal property and the right to protect your person and property are all subject to regulation by government. Government officials at all levels routinely violate the rights of the people with impunity. Many of us look on this situation and wonder, what can we do? How do you fight city hall, or the great and awesome power of the Federal Government? How do we put a government that was established to protect rights back on that path? What happened to the checks and balances that were supposed to keep government power limited? Are violent revolution or acquiescence our only options?
Whereas all branches of government are cooperating to subject the people under despotism and have been deaf to our cries for justice, our protests and petitions, we find ourselves in a position similar to the founding generation. Their answer to a constitutional government that violated their rights is found in the Declaration of Independence. “....to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
There is no question the founding generation believed their cause was moral. The defense of natural rights against oppression, be it personal or governmental, is a moral action. Most of us would agree with that. But was it legal? The question is secondary to the first because a moral action trumps a legal one any time. However, as both we and they are part of a continually evolving history of constitutional, republican government where law, and not men, are supreme and the rights of man are to respected above all else, is there within that tradition the legal right to rebel against a constitutional government that has become oppressive? The answer is yes.
The colonists were English subjects and the concept of limited government power in that tradition goes all the way back to 1215 AD and the Magna Carta. King John bowed to the wishes of the barons and the people and accepted some degree of accountability for his actions. This is the origin of the right of petition that became part of the first amendment. If you read chapter 61 of the Magna Carta,twenty-five barons were chosen “to observe and hold, and cause to be observed, the peace and liberties we have granted....so that if we or any of our officers shall in anything be at fault toward anyone, or shall have broken any on of the articles of this peace or of this security....and the offense be notified to four barons....four barons shall repair to us and laying the transgression before us, petition to have the transgression redressed without delay. And if we have not corrected the transgression within forty days the four barons aforesaid shall refer the matter to the rest of the five and twenty....and...together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in other ways they can, until redress has been obtained as they deem fit, saving harmless our own person...”
In other words, if the king or his officers violated the rights of the people and the petition for redress was ignored, the people had the right to take their compensation from the king and his officers by violence if necessary. In 1669 the right to petition was granted to every commoner in England and in 1689 they were given the right to petition the king directly and prohibited any prosecution for making such petitions.
The right to petition for redress of grievances is the foundation of a civil society. As seen above, it is part of our common law tradition. If Bill hurts John physically or steals his property, he has violated John's rights. John has a right to be made whole from that violation. He could do violence to Bill, an eye for an eye, or take Bill's property himself. But the courts take violence out of the equation, allowing John to sue Bill for damages in order to be made whole. The Supreme Court in Chambers v. Baltimore and Ohio RR (1907) said
“The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of an orderly government.”
The same principle applies to government. If government violates the rights of an individual, he has the right to sue in order to be made whole and to hold the guilty officer accountable for his action. This is a direct and immediate check on government power. If government in the abstract and government as a collection of individuals is held accountable for any violation of natural rights, they are much more likely to respect those rights. They will, in Jefferson's words, fear the people and thus liberty will be firmly established.
Unfortunately, neither the courts nor the government see it this way. The ability to rely on the courts for redress went out the window in 1793; yes, barely two years after the bill of rights was adopted. Chief Justice John Jay in Chisholm v. Georgia, while admitting there was no reason why a state couldn't be sued, doubted that a suit would lie against the United States because there was no power the courts had to enforce the judgment. Apparently Jay was worried the courts would seem weak if they made a decision and the government refused to abide it. So this first Supreme Court announced the rule of government unaccountability. Simply stated, because the judiciary cannot enforce an order requiring the government to be fair and just under the constitution, the judiciary will not require government to be fair and just.
Next, the revered Chief Justice Marshall in Cohens v. Virginia (1821) simply stated that “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” Later in United States v. Clarke he declared that because the US is not “suable of common right, the party who institutes such suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it.” So Marshall handed the ball off to congress. While it is true that in the early nineteenth century congress made a habit of reading petitions, often about the abolition of slavery, they did nothing. And how could they? Marshall said jurisdiction needed to be created by congress yet the amendment clearly states that “Congress shall make no law...abridging..the right of the people...to petition the government for redress of grievances.” Congress may not regulate or restrict this right in any way. But this is OK because Justice Marshall was also the one who developed the idea of judicial supremacy over the Constitution-the Constitution now means whatever the court says it means regardless of what it actually says. This is constitutional amendment by judicial fiat and undermines the reason for having a constitution at all. We call this judicial tyranny.
Perhaps we need to go back and understand what petition in this context actually means. Most of us are familiar with the idea that a petition is a collection of signatures for some purpose such as putting something on a ballot or attempting to motivate an elected official to do anything. I have done both and we all know that petitioning elected officials is not going to restore our rights nor will that body compensate us from the treasury. That is not what the first amendment is about. The right of petition is not an oppressed individual grovelling before an absolute monarch begging relief but a sovereign individual boldly asserting that his rights have been violated and demanding justice and compensation from a government that is his servant. In this context petition is a legal term in which the court is asked to do something. In our case, it is to provide “redress” which in Black's Law Dictionary is “The receiving satisfaction for an injury sustained.” Petition is the right of the citizen to use the compulsory process of the law to compel the government, no different from any other party, to answer and be accountable for any injury to any citizen. The injury in the case of the first amendment is the violation of an individual's natural rights, under the fifth amendment, his property. The Magna Carta understood redress monetarily and both Jay and Marshall understood it that way too, that is what suing is all about. So Marshall was wrong, the courts do have jurisdiction by definition for these are legal matters outside the authority of congress. In fact, the Constitution under article 3 section 2 specifically states that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution.” So when a citizen petitions for redress of an right enumerated under the Constitution against a federal judge or FBI agent, isn't that a case “arising under this Constitution”? Of course it is and congress can make no law asserting otherwise.
Jay's and Marshall's opinions, among others, gave birth to the idea of “sovereign immunity.” How did the federal government acquire this abominable power? The tenth amendment states that any powers not specifically delegated to the federal government are reserved for the states and the people. The Constitution does not delegate this power and the first amendment specifically prohibits it. Yet Justice Miller in United States v. Lee (1882), after recognizing the efficacy of the right of petition in England and determining it is part of common law, said “There is in this country, however, no such thing as the petition of right, as there is no such thing as a kingly head to the Nation, nor any of the states which compose it. There is vested in no officer or body the authority to consent that the State shall be sued, except in the law making power, which may give such consent on the terms it may impose.” So according to Justice Miller, only congress can choose to give consent for the government to be sued, and it can do so on any terms it sees fit. It seems Justice Miller never read the first amendment which specifically prohibits congress from limiting this right. But it gets worse.
Justice Holmes in Kawananahoa v. Polyblank (1907) stated that the reason for sovereign immunity is because “there can be no legal right as against the authority that makes the law on which the right depends.” This is a most arrogant statement. First of all, individual, natural rights are not dependent on law nor on government authority. Government cannot grant natural rights, they do not depend on any law or constitution. Second, the government is not an independent, self existent power unto itself it, its power comes from “we the people” who only granted it specific and limited authority. Third, it recognizes no recourse against, and therefore no limits to, government law making authority at all. Government becomes the all powerful and unquestioned authority and no matter what it decrees, the subjects of the proclamations have no right to protest. The government has no accountability for any wrongs it does or injuries its actions inflict.
That is the real issue. Sovereign immunity allows government to injure its citizens, ignore their rights and take their property without just compensation. Simply put, the government wants the right to act like a criminal. And since the government is made up of individuals who actually act in ways that violate rights, it becomes a criminal organization. But the courts have extended immunity to these individuals as well. The argument is that the fear of personal liability would negatively interfere with the performance of government officials. I say good, our officials should tread very lightly and cautiously in everything they do and it is fear of the people (Jefferson again) that will keep them honest to their oath to the Constitution. Today there is no fear, not just of being held accountable by the people through the process of redress but even of accountability within government itself. If one has a job with no accountability and no fear of being fired, how will that job be performed? All external motivation for excellent performance, fairness and even kindness to the people over which one has authority are gone. A few will muster the internal fortitude to stay honest, most will not and many will act in ways that, absent immunity, they would not seriously contemplate.
The petition clause and the right to a judicial remedy is the right to enter into an adversarial system. Ultimately, there are to be three hundred million policemen and women to insure that government officials do not violate their rights, steal from them, sell government power to the highest bidder or accumulate power for personal desire. But when the judicial system itself claims immunity for all branches of government as well as itself, arming itself with complicated laws and regulations and armies of publicly funded lawyers to secure their “rights” against the citizenry, all that is left is a government only accountable to itself and those who can pay (read bribe) for influence. You and I, as individuals, are left powerless.
Case law has expanded this immunity to cover the president and his officers, judges, the states, and it has bestowed qualified immunity to government agents like prosecutors, police officers and even private parties under government contract. The judiciary has been handing out immunity like candy and its effect has been to unite the entirety of government against the people. The concept that the three branches would jealously guard their power and, so divided, not become oppressive is gone. Now, united under the legal umbrella of immunity, they have carte blanche to exercise power in any way they see fit and the ultimate responsibility of government has become to protect itself from accountability. This is what we have come to call the “Deep State.” A conglomeration of individuals in all branches and levels of government who have violated their oath of office. Each one raised their right hand and vowed to “support and defend the Constitution” but they now understand it to mean “support and defend the government of the United States at all costs.”
Now it is true that sovereign immunity is not absolute. I'm sure there are those of you who can think of cases, civil rights and others, where the state was sued. The procedure for petition may still exist in some cases where some courts may recognize it. That is the first problem. Suits arising from petition rights are subject to the political and social mores of the courts in which they are lodged rather than impartial law or merit. Second, the law is so complex in this area that for all practical purposes, immunity exists wherever a judge decides it exists which means that the substance of the right of petition does not exist. And, of course, once the judge grants immunity there is no recourse for the affected party because he has immunity too. This situation has nullified one of government's primary duties-to ensure justice among its people and between the people and itself through redress of grievances. When people know justice will be served for their misbehavior, they are less likely to misbehave. When governments know they will be harassed by the people for their misdeeds, they will do their utmost to prevent the conditions that lead to their harassment. If the law is fair between government and citizen, just as it shouldbe between citizens, society will be just and peaceful. If the people have the right of redress through the courts common to all and under law common to all, equality under the law is upheld and government is held accountable. That is not the situation as it exists today.
What is the practicality of our situation if we attempt to obtain redress for our grievances? First, the government has granted itself and its actors immunity from suit in most cases so our petitions will never get off the ground-they will simply be dismissed. We can only sue our sovereign if the sovereign consents. Second, even if it does, the law respecting redress in both state and federal courts has become so complex and convoluted that the government lawyers (paid for with your stolen money) will be able to litigate any petitioners into submission. Knowing they can get away with this by dragging things out for years with the unlimited resources of the government behind them prevents any settlement out of court for even the clearest claims of injustice. Third, they also know they can always find or invent some violation with which to prosecute the petitioner in order to intimidate or punish him for having the audacity to criticize the wise and benevolent rulers. As many of the more recent whistle-blower cases have demonstrated, the government depends on judicial oppression to cover up its violations of rights and oppressive actions.
At this point we have established that the right to petition for redress as a legal procedure has its roots in common law and was enshrined in the first amendment to the Constitution. But that was a long time ago in a different era. Really, rights are not the same in all times? The fact is that the United States is under treaty obligation to provide effective avenues for petitioning regress. The International Covenant on Civil and Political Rights was adopted by the United Nations in 1966, signed by the United States in 1977 and ratified as a treaty obligation in 1992. Article 2 section three states:
3. Each State party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity.
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.
So even though the government may point to judicial precedent and a long standing tradition of sovereign immunity, this treaty obligates the United States government to reject that tradition in favor of developing an effective judicial remedy for the violation of rights. Fortunately, we don't have to develop a new tradition, we have an old constitutional one. Needless to say, neither the judiciary nor the government as a whole has taken any steps to fulfill this obligation any more that it has to fulfill its constitutional obligations. The arrogance of our government to do as it pleases irregardless of written or moral obligations is absolute among all branches and in all levels.
While we may expect that some government officials will act arrogantly and inappropriately when vested with authority, we often have this ideal vision of the judiciary as an independent watchdog of our rights. It is not. The judiciary is part of the government. Judges receive their posts as a result of political appointments or elections which means favors or obligations to party. They bring not only personal prejudices and biases to the bench but also find themselves biased in favor of their paymaster which, in practice, means that the will of the government trumps justice. The judiciary as part of the government does not want to see an effective petition clause because that nullifies government power at all levels. This situation leads to the elimination of the substantive right of redress mentioned earlier. Our common law ancestor, the Magna Carta, recognizes this and while it addresses the procedural aspect of petition, it is more concerned with the substantive one. That is why if the government has “not corrected the transgression within forty days” a state of war will exist where the governed may lawfully ravage the government “until redress has been accomplished as they deem fit.” What does the idea that either the people receive redress or there will be war do to judicial bias? Would that not eliminate their bias, ensuring honesty and fairness? If the people receive effective and substantive redress they will be peaceable knowing their rights are respected and secure. The right to sue an individual is the alternative to revenge and force, so the right to sue the government is the alternative to rebellion, revolution and the terrorism they entail. The judiciary is the civilized alternative to force and violence. To accomplish that function, it must be fair and accessible to all.
Government unaccountability is based on a utilitarian philosophy that the government knows what is best for its citizens in all situations. By virtue of their position in government, officials are blessed with a wisdom far above the rest of us and the decisions they make are for the good of the whole nation. Therefore, government believes it may unlawfully injure some of its citizens for the greater good of the people or the nation or the government itself. This is simply another variation of the idea that the ends justify the means. It is used all the time today, particularly when our safety and security are invoked. You have to give up your fourth amendment rights so government can conduct mass surveillance to keep you safe. You must give up you first amendment rights so government can regulate the internet and stop criminals. You must give up your second amendment right so government can keep guns out of the hands of bad people. The list goes on and on.....and on. As is always the case, once it becomes accepted that government can regulate (read abridge or violate) a right, they will do so repeatedly and with great vigor, always couching it in glowing terms as being good for the whole.
This idea is anathema to personal, individual liberty. A society ruled by a government that can choose who has what rights and when, who is worth supporting and who is not, and ultimately, who will live and who will die for the good of the whole is not a free society. It is not a nation that respects the life and worth of the individual in absolute terms, only in utilitarian ones. Rights need to be real, respected and exercised at will by a people and when violated, the guilty parties, whether government or private individual, need to be held accountable and compensation must be secured. That is a just society. Any state can say its people have rights, they may even point to a bill of rights. The Soviet Union had a bill of rights. The 1936 Constitution chapter ten guaranteed the rights of free speech, press, assembly, due process, and privacy, among others. However, the people could not exercise or defend those rights because the state itself ignored them. Are we any different? Perhaps we don't have the gulag....but we incarcerate more of our citizens than any other country. We have the illusion of freedom because we can choose from 100 items in the cereal aisle or among 1000 channels. But without an effective petition right, we only enjoy any freedom at the will of those in power and we end up with a bill of unenforceable rights.
So where are we? We shout and complain, we petition in the non legal sense. We have freedom of speech to a degree, we can get information out there. This is one area, under the Freedom of Information Act, where the government has allowed itself to be sued; although compliance is another matter. There are media outlets that expose corruption and wrongdoing, filmmakers that put together documentaries demonstrating malfeasance, bloggers and investigative journalists who shine the light in dark places. So what? What gets done? So congress may be motivated to begin one of their endless investigations or Inspectors General make up their reports. Who goes to jail, who even gets fired for fraud, corruption and violations of rights? Few, if any. How do average citizens receive recompense for the wrongs done to them? They don't. That is the importance of the right to petition for redress. To allow freedom of speech without the opportunity for redress is a recipe for revolution. It leaves the citizens shouting outside the palace gates while the rulers and their henchmen relax inside, ignoring the protests and going about their schemes unhindered. Those citizens are eventually going to get very frustrated and find other, less “civilized”, methods for securing their rights.
The Universal Declaration of Human Rights (1948) itself declares the essential nature of government accountability in ensuring peaceful relations between government and people.
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Sovereign immunity is based on the dangerous assumptions that unredressed grievances will just go away, that they are aberrations and that government is, by and large, a good actor. None of this is true. Unredressed grievances fester and spread distrust and contempt for government, they encourage malicious behavior among all government officials and the fact is government cannot be trusted with unlimited power-that was what the revolution was all about! The right of petition is the right conservative of all others and the reason government ignores or abridges it is to allow its officers to violate all other rights with impunity. When a government does that, then there is but one response and that is to exercise the natural right of self defense enshrined in the second amendment. Ultimately, those are the only two moral and legal responses to a violation of rights. If the right of petition is denied, the right of self defense must be exercised to remedy the offense.
Our right of petition has been denied, of that there can be no doubt. Congress cannot interfere with the right and the courts have refused to recognize it. Our common law teaches that the alternative to substantive redress through the courts is lawful rebellion. Just as common law countenances the right to use violence to defend oneself and one's property against an individual, it also authorizes violence against government when that government violates rights or property. The Declaration of Independence was a list of grievances to which the British government and crown had been unresponsive. Therefore, the colonists had the legal right under common law originally expounded by the magna carta to take up arms and redress their grievances through force of arms. Wars are fought for conquest and plunder. When the government violates the rights of the people, seeking to subjugate them and take their property, a state of war exists between the state and its people, people who are no longer citizens but subjects. If there is no judicial process by which the people can protect themselves and find justice, their only other option is to seek justice by meeting government violence with violence of their own.
No civilized people want that. That is why the Declaration recognizes the fact that people are often more willing to suffer indignities while they are bearable. The problem with that is government will take advantage of inaction to become more oppressive. This is the slippery slope, the camel's nose in the tent. No beginnings, no matter how small, can be neglected. Under the appearance of the most gracious, and institutions long revered, under the dignity of government and smiles of beneficence do the subtle and ambitious make their first encroachments upon their fellow citizens. Watch and oppose ought to be the motto of all. For while the best intentions of virtuous men may establish liberty and formidable institutions to guard it, we may fall like Achilles; the least point left unguarded may lead to a mortal blow to freedom, often while we are flattered with security and altruism. The infection of tyranny entered early and has spread throughout the body until we are but a rotten corpse draped in the rags of what remains of our liberty. Such a government of unlimited power set against the people in which they have no share cannot be, by reason and history, a rightful or legal power.
While it is the natural right and inclination of the conquered to throw off the yoke as soon as they are able, subjects enslaved by their own government too often become spiritless and despondent, guns and bars too often terrify them from a vigorous pursuit of their liberty. The imposition of absolute tyranny is nearly complete and while we may detest and decry our predicament, what good are our protests if we have not the courage or resolution to prevent its accomplishment? Our oppressors would have us lie down in a bed of rest and security persuading us there is no danger, administering an opiate of distraction and stolen wealth so enticing that the majority pass their days in a stupor and even the sons of liberty may be pacified. The yoke has been borne so long that the wisdom and spirit of our people are sunk into ignorance, barbarism and inactivity.
Do not be deceived. The reversal of our fortune, the removal of our bonds and the re-establishment of our liberty will not prove an easy acquisition. Arrayed against us are the worst passions of the human heart, the subtlest designs and the most sophisticated apparatus for enslavement the world has seen. Trials and tribulations must be endured in the struggle, life and fortune will be put in jeopardy but that is the fate of all who enter into the noble exertions necessary to secure liberty for themselves and their children. So take courage. Your efforts are cheered by our forefathers who made no less a sacrifice, and anxiously anticipated by our posterity who desire to enter the world with wrist and ankles free from the shackles of despotism.
The following is based upon two concepts. The first is constitutional:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The second is a quote of unknown origin but often attributed to Thomas Jefferson:
"When government fears the people, there is liberty. When the people fear the government, there is tyranny."
There is no question that our government in the United States, and socialist democracies the world over, have violated the most fundamental rights of the people they ostensibly serve. Freedom of speech, of the press, religious freedom, the right to be secure in your personal property and the right to protect your person and property are all subject to regulation by government. Government officials at all levels routinely violate the rights of the people with impunity. Many of us look on this situation and wonder, what can we do? How do you fight city hall, or the great and awesome power of the Federal Government? How do we put a government that was established to protect rights back on that path? What happened to the checks and balances that were supposed to keep government power limited? Are violent revolution or acquiescence our only options?
Whereas all branches of government are cooperating to subject the people under despotism and have been deaf to our cries for justice, our protests and petitions, we find ourselves in a position similar to the founding generation. Their answer to a constitutional government that violated their rights is found in the Declaration of Independence. “....to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
There is no question the founding generation believed their cause was moral. The defense of natural rights against oppression, be it personal or governmental, is a moral action. Most of us would agree with that. But was it legal? The question is secondary to the first because a moral action trumps a legal one any time. However, as both we and they are part of a continually evolving history of constitutional, republican government where law, and not men, are supreme and the rights of man are to respected above all else, is there within that tradition the legal right to rebel against a constitutional government that has become oppressive? The answer is yes.
The colonists were English subjects and the concept of limited government power in that tradition goes all the way back to 1215 AD and the Magna Carta. King John bowed to the wishes of the barons and the people and accepted some degree of accountability for his actions. This is the origin of the right of petition that became part of the first amendment. If you read chapter 61 of the Magna Carta,twenty-five barons were chosen “to observe and hold, and cause to be observed, the peace and liberties we have granted....so that if we or any of our officers shall in anything be at fault toward anyone, or shall have broken any on of the articles of this peace or of this security....and the offense be notified to four barons....four barons shall repair to us and laying the transgression before us, petition to have the transgression redressed without delay. And if we have not corrected the transgression within forty days the four barons aforesaid shall refer the matter to the rest of the five and twenty....and...together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in other ways they can, until redress has been obtained as they deem fit, saving harmless our own person...”
In other words, if the king or his officers violated the rights of the people and the petition for redress was ignored, the people had the right to take their compensation from the king and his officers by violence if necessary. In 1669 the right to petition was granted to every commoner in England and in 1689 they were given the right to petition the king directly and prohibited any prosecution for making such petitions.
The right to petition for redress of grievances is the foundation of a civil society. As seen above, it is part of our common law tradition. If Bill hurts John physically or steals his property, he has violated John's rights. John has a right to be made whole from that violation. He could do violence to Bill, an eye for an eye, or take Bill's property himself. But the courts take violence out of the equation, allowing John to sue Bill for damages in order to be made whole. The Supreme Court in Chambers v. Baltimore and Ohio RR (1907) said
“The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of an orderly government.”
The same principle applies to government. If government violates the rights of an individual, he has the right to sue in order to be made whole and to hold the guilty officer accountable for his action. This is a direct and immediate check on government power. If government in the abstract and government as a collection of individuals is held accountable for any violation of natural rights, they are much more likely to respect those rights. They will, in Jefferson's words, fear the people and thus liberty will be firmly established.
Unfortunately, neither the courts nor the government see it this way. The ability to rely on the courts for redress went out the window in 1793; yes, barely two years after the bill of rights was adopted. Chief Justice John Jay in Chisholm v. Georgia, while admitting there was no reason why a state couldn't be sued, doubted that a suit would lie against the United States because there was no power the courts had to enforce the judgment. Apparently Jay was worried the courts would seem weak if they made a decision and the government refused to abide it. So this first Supreme Court announced the rule of government unaccountability. Simply stated, because the judiciary cannot enforce an order requiring the government to be fair and just under the constitution, the judiciary will not require government to be fair and just.
Next, the revered Chief Justice Marshall in Cohens v. Virginia (1821) simply stated that “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” Later in United States v. Clarke he declared that because the US is not “suable of common right, the party who institutes such suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it.” So Marshall handed the ball off to congress. While it is true that in the early nineteenth century congress made a habit of reading petitions, often about the abolition of slavery, they did nothing. And how could they? Marshall said jurisdiction needed to be created by congress yet the amendment clearly states that “Congress shall make no law...abridging..the right of the people...to petition the government for redress of grievances.” Congress may not regulate or restrict this right in any way. But this is OK because Justice Marshall was also the one who developed the idea of judicial supremacy over the Constitution-the Constitution now means whatever the court says it means regardless of what it actually says. This is constitutional amendment by judicial fiat and undermines the reason for having a constitution at all. We call this judicial tyranny.
Perhaps we need to go back and understand what petition in this context actually means. Most of us are familiar with the idea that a petition is a collection of signatures for some purpose such as putting something on a ballot or attempting to motivate an elected official to do anything. I have done both and we all know that petitioning elected officials is not going to restore our rights nor will that body compensate us from the treasury. That is not what the first amendment is about. The right of petition is not an oppressed individual grovelling before an absolute monarch begging relief but a sovereign individual boldly asserting that his rights have been violated and demanding justice and compensation from a government that is his servant. In this context petition is a legal term in which the court is asked to do something. In our case, it is to provide “redress” which in Black's Law Dictionary is “The receiving satisfaction for an injury sustained.” Petition is the right of the citizen to use the compulsory process of the law to compel the government, no different from any other party, to answer and be accountable for any injury to any citizen. The injury in the case of the first amendment is the violation of an individual's natural rights, under the fifth amendment, his property. The Magna Carta understood redress monetarily and both Jay and Marshall understood it that way too, that is what suing is all about. So Marshall was wrong, the courts do have jurisdiction by definition for these are legal matters outside the authority of congress. In fact, the Constitution under article 3 section 2 specifically states that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution.” So when a citizen petitions for redress of an right enumerated under the Constitution against a federal judge or FBI agent, isn't that a case “arising under this Constitution”? Of course it is and congress can make no law asserting otherwise.
Jay's and Marshall's opinions, among others, gave birth to the idea of “sovereign immunity.” How did the federal government acquire this abominable power? The tenth amendment states that any powers not specifically delegated to the federal government are reserved for the states and the people. The Constitution does not delegate this power and the first amendment specifically prohibits it. Yet Justice Miller in United States v. Lee (1882), after recognizing the efficacy of the right of petition in England and determining it is part of common law, said “There is in this country, however, no such thing as the petition of right, as there is no such thing as a kingly head to the Nation, nor any of the states which compose it. There is vested in no officer or body the authority to consent that the State shall be sued, except in the law making power, which may give such consent on the terms it may impose.” So according to Justice Miller, only congress can choose to give consent for the government to be sued, and it can do so on any terms it sees fit. It seems Justice Miller never read the first amendment which specifically prohibits congress from limiting this right. But it gets worse.
Justice Holmes in Kawananahoa v. Polyblank (1907) stated that the reason for sovereign immunity is because “there can be no legal right as against the authority that makes the law on which the right depends.” This is a most arrogant statement. First of all, individual, natural rights are not dependent on law nor on government authority. Government cannot grant natural rights, they do not depend on any law or constitution. Second, the government is not an independent, self existent power unto itself it, its power comes from “we the people” who only granted it specific and limited authority. Third, it recognizes no recourse against, and therefore no limits to, government law making authority at all. Government becomes the all powerful and unquestioned authority and no matter what it decrees, the subjects of the proclamations have no right to protest. The government has no accountability for any wrongs it does or injuries its actions inflict.
That is the real issue. Sovereign immunity allows government to injure its citizens, ignore their rights and take their property without just compensation. Simply put, the government wants the right to act like a criminal. And since the government is made up of individuals who actually act in ways that violate rights, it becomes a criminal organization. But the courts have extended immunity to these individuals as well. The argument is that the fear of personal liability would negatively interfere with the performance of government officials. I say good, our officials should tread very lightly and cautiously in everything they do and it is fear of the people (Jefferson again) that will keep them honest to their oath to the Constitution. Today there is no fear, not just of being held accountable by the people through the process of redress but even of accountability within government itself. If one has a job with no accountability and no fear of being fired, how will that job be performed? All external motivation for excellent performance, fairness and even kindness to the people over which one has authority are gone. A few will muster the internal fortitude to stay honest, most will not and many will act in ways that, absent immunity, they would not seriously contemplate.
The petition clause and the right to a judicial remedy is the right to enter into an adversarial system. Ultimately, there are to be three hundred million policemen and women to insure that government officials do not violate their rights, steal from them, sell government power to the highest bidder or accumulate power for personal desire. But when the judicial system itself claims immunity for all branches of government as well as itself, arming itself with complicated laws and regulations and armies of publicly funded lawyers to secure their “rights” against the citizenry, all that is left is a government only accountable to itself and those who can pay (read bribe) for influence. You and I, as individuals, are left powerless.
Case law has expanded this immunity to cover the president and his officers, judges, the states, and it has bestowed qualified immunity to government agents like prosecutors, police officers and even private parties under government contract. The judiciary has been handing out immunity like candy and its effect has been to unite the entirety of government against the people. The concept that the three branches would jealously guard their power and, so divided, not become oppressive is gone. Now, united under the legal umbrella of immunity, they have carte blanche to exercise power in any way they see fit and the ultimate responsibility of government has become to protect itself from accountability. This is what we have come to call the “Deep State.” A conglomeration of individuals in all branches and levels of government who have violated their oath of office. Each one raised their right hand and vowed to “support and defend the Constitution” but they now understand it to mean “support and defend the government of the United States at all costs.”
Now it is true that sovereign immunity is not absolute. I'm sure there are those of you who can think of cases, civil rights and others, where the state was sued. The procedure for petition may still exist in some cases where some courts may recognize it. That is the first problem. Suits arising from petition rights are subject to the political and social mores of the courts in which they are lodged rather than impartial law or merit. Second, the law is so complex in this area that for all practical purposes, immunity exists wherever a judge decides it exists which means that the substance of the right of petition does not exist. And, of course, once the judge grants immunity there is no recourse for the affected party because he has immunity too. This situation has nullified one of government's primary duties-to ensure justice among its people and between the people and itself through redress of grievances. When people know justice will be served for their misbehavior, they are less likely to misbehave. When governments know they will be harassed by the people for their misdeeds, they will do their utmost to prevent the conditions that lead to their harassment. If the law is fair between government and citizen, just as it shouldbe between citizens, society will be just and peaceful. If the people have the right of redress through the courts common to all and under law common to all, equality under the law is upheld and government is held accountable. That is not the situation as it exists today.
What is the practicality of our situation if we attempt to obtain redress for our grievances? First, the government has granted itself and its actors immunity from suit in most cases so our petitions will never get off the ground-they will simply be dismissed. We can only sue our sovereign if the sovereign consents. Second, even if it does, the law respecting redress in both state and federal courts has become so complex and convoluted that the government lawyers (paid for with your stolen money) will be able to litigate any petitioners into submission. Knowing they can get away with this by dragging things out for years with the unlimited resources of the government behind them prevents any settlement out of court for even the clearest claims of injustice. Third, they also know they can always find or invent some violation with which to prosecute the petitioner in order to intimidate or punish him for having the audacity to criticize the wise and benevolent rulers. As many of the more recent whistle-blower cases have demonstrated, the government depends on judicial oppression to cover up its violations of rights and oppressive actions.
At this point we have established that the right to petition for redress as a legal procedure has its roots in common law and was enshrined in the first amendment to the Constitution. But that was a long time ago in a different era. Really, rights are not the same in all times? The fact is that the United States is under treaty obligation to provide effective avenues for petitioning regress. The International Covenant on Civil and Political Rights was adopted by the United Nations in 1966, signed by the United States in 1977 and ratified as a treaty obligation in 1992. Article 2 section three states:
3. Each State party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity.
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.
So even though the government may point to judicial precedent and a long standing tradition of sovereign immunity, this treaty obligates the United States government to reject that tradition in favor of developing an effective judicial remedy for the violation of rights. Fortunately, we don't have to develop a new tradition, we have an old constitutional one. Needless to say, neither the judiciary nor the government as a whole has taken any steps to fulfill this obligation any more that it has to fulfill its constitutional obligations. The arrogance of our government to do as it pleases irregardless of written or moral obligations is absolute among all branches and in all levels.
While we may expect that some government officials will act arrogantly and inappropriately when vested with authority, we often have this ideal vision of the judiciary as an independent watchdog of our rights. It is not. The judiciary is part of the government. Judges receive their posts as a result of political appointments or elections which means favors or obligations to party. They bring not only personal prejudices and biases to the bench but also find themselves biased in favor of their paymaster which, in practice, means that the will of the government trumps justice. The judiciary as part of the government does not want to see an effective petition clause because that nullifies government power at all levels. This situation leads to the elimination of the substantive right of redress mentioned earlier. Our common law ancestor, the Magna Carta, recognizes this and while it addresses the procedural aspect of petition, it is more concerned with the substantive one. That is why if the government has “not corrected the transgression within forty days” a state of war will exist where the governed may lawfully ravage the government “until redress has been accomplished as they deem fit.” What does the idea that either the people receive redress or there will be war do to judicial bias? Would that not eliminate their bias, ensuring honesty and fairness? If the people receive effective and substantive redress they will be peaceable knowing their rights are respected and secure. The right to sue an individual is the alternative to revenge and force, so the right to sue the government is the alternative to rebellion, revolution and the terrorism they entail. The judiciary is the civilized alternative to force and violence. To accomplish that function, it must be fair and accessible to all.
Government unaccountability is based on a utilitarian philosophy that the government knows what is best for its citizens in all situations. By virtue of their position in government, officials are blessed with a wisdom far above the rest of us and the decisions they make are for the good of the whole nation. Therefore, government believes it may unlawfully injure some of its citizens for the greater good of the people or the nation or the government itself. This is simply another variation of the idea that the ends justify the means. It is used all the time today, particularly when our safety and security are invoked. You have to give up your fourth amendment rights so government can conduct mass surveillance to keep you safe. You must give up you first amendment rights so government can regulate the internet and stop criminals. You must give up your second amendment right so government can keep guns out of the hands of bad people. The list goes on and on.....and on. As is always the case, once it becomes accepted that government can regulate (read abridge or violate) a right, they will do so repeatedly and with great vigor, always couching it in glowing terms as being good for the whole.
This idea is anathema to personal, individual liberty. A society ruled by a government that can choose who has what rights and when, who is worth supporting and who is not, and ultimately, who will live and who will die for the good of the whole is not a free society. It is not a nation that respects the life and worth of the individual in absolute terms, only in utilitarian ones. Rights need to be real, respected and exercised at will by a people and when violated, the guilty parties, whether government or private individual, need to be held accountable and compensation must be secured. That is a just society. Any state can say its people have rights, they may even point to a bill of rights. The Soviet Union had a bill of rights. The 1936 Constitution chapter ten guaranteed the rights of free speech, press, assembly, due process, and privacy, among others. However, the people could not exercise or defend those rights because the state itself ignored them. Are we any different? Perhaps we don't have the gulag....but we incarcerate more of our citizens than any other country. We have the illusion of freedom because we can choose from 100 items in the cereal aisle or among 1000 channels. But without an effective petition right, we only enjoy any freedom at the will of those in power and we end up with a bill of unenforceable rights.
So where are we? We shout and complain, we petition in the non legal sense. We have freedom of speech to a degree, we can get information out there. This is one area, under the Freedom of Information Act, where the government has allowed itself to be sued; although compliance is another matter. There are media outlets that expose corruption and wrongdoing, filmmakers that put together documentaries demonstrating malfeasance, bloggers and investigative journalists who shine the light in dark places. So what? What gets done? So congress may be motivated to begin one of their endless investigations or Inspectors General make up their reports. Who goes to jail, who even gets fired for fraud, corruption and violations of rights? Few, if any. How do average citizens receive recompense for the wrongs done to them? They don't. That is the importance of the right to petition for redress. To allow freedom of speech without the opportunity for redress is a recipe for revolution. It leaves the citizens shouting outside the palace gates while the rulers and their henchmen relax inside, ignoring the protests and going about their schemes unhindered. Those citizens are eventually going to get very frustrated and find other, less “civilized”, methods for securing their rights.
The Universal Declaration of Human Rights (1948) itself declares the essential nature of government accountability in ensuring peaceful relations between government and people.
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Sovereign immunity is based on the dangerous assumptions that unredressed grievances will just go away, that they are aberrations and that government is, by and large, a good actor. None of this is true. Unredressed grievances fester and spread distrust and contempt for government, they encourage malicious behavior among all government officials and the fact is government cannot be trusted with unlimited power-that was what the revolution was all about! The right of petition is the right conservative of all others and the reason government ignores or abridges it is to allow its officers to violate all other rights with impunity. When a government does that, then there is but one response and that is to exercise the natural right of self defense enshrined in the second amendment. Ultimately, those are the only two moral and legal responses to a violation of rights. If the right of petition is denied, the right of self defense must be exercised to remedy the offense.
Our right of petition has been denied, of that there can be no doubt. Congress cannot interfere with the right and the courts have refused to recognize it. Our common law teaches that the alternative to substantive redress through the courts is lawful rebellion. Just as common law countenances the right to use violence to defend oneself and one's property against an individual, it also authorizes violence against government when that government violates rights or property. The Declaration of Independence was a list of grievances to which the British government and crown had been unresponsive. Therefore, the colonists had the legal right under common law originally expounded by the magna carta to take up arms and redress their grievances through force of arms. Wars are fought for conquest and plunder. When the government violates the rights of the people, seeking to subjugate them and take their property, a state of war exists between the state and its people, people who are no longer citizens but subjects. If there is no judicial process by which the people can protect themselves and find justice, their only other option is to seek justice by meeting government violence with violence of their own.
No civilized people want that. That is why the Declaration recognizes the fact that people are often more willing to suffer indignities while they are bearable. The problem with that is government will take advantage of inaction to become more oppressive. This is the slippery slope, the camel's nose in the tent. No beginnings, no matter how small, can be neglected. Under the appearance of the most gracious, and institutions long revered, under the dignity of government and smiles of beneficence do the subtle and ambitious make their first encroachments upon their fellow citizens. Watch and oppose ought to be the motto of all. For while the best intentions of virtuous men may establish liberty and formidable institutions to guard it, we may fall like Achilles; the least point left unguarded may lead to a mortal blow to freedom, often while we are flattered with security and altruism. The infection of tyranny entered early and has spread throughout the body until we are but a rotten corpse draped in the rags of what remains of our liberty. Such a government of unlimited power set against the people in which they have no share cannot be, by reason and history, a rightful or legal power.
While it is the natural right and inclination of the conquered to throw off the yoke as soon as they are able, subjects enslaved by their own government too often become spiritless and despondent, guns and bars too often terrify them from a vigorous pursuit of their liberty. The imposition of absolute tyranny is nearly complete and while we may detest and decry our predicament, what good are our protests if we have not the courage or resolution to prevent its accomplishment? Our oppressors would have us lie down in a bed of rest and security persuading us there is no danger, administering an opiate of distraction and stolen wealth so enticing that the majority pass their days in a stupor and even the sons of liberty may be pacified. The yoke has been borne so long that the wisdom and spirit of our people are sunk into ignorance, barbarism and inactivity.
Do not be deceived. The reversal of our fortune, the removal of our bonds and the re-establishment of our liberty will not prove an easy acquisition. Arrayed against us are the worst passions of the human heart, the subtlest designs and the most sophisticated apparatus for enslavement the world has seen. Trials and tribulations must be endured in the struggle, life and fortune will be put in jeopardy but that is the fate of all who enter into the noble exertions necessary to secure liberty for themselves and their children. So take courage. Your efforts are cheered by our forefathers who made no less a sacrifice, and anxiously anticipated by our posterity who desire to enter the world with wrist and ankles free from the shackles of despotism.
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