Sovereign immunity in law and governance

Sovereign Immunity

(Chicago Citation)

It has been a tradition in English law that the Sovereign can do no wrong and therefore had immunity against any and all laws within the kingdom. In fact, this was a way to protect the Monarch from being held to the same legal standard as everyone else. When the United States began, the framers of the Constitution made certain to include the concept of "sovereign immunity" on the "practical ground that there can be no legal right against the authority that makes the law on which the right depends." ("Sovereign Immunity: 205 U.S. 349, 353") But they also included the right of the government to waive its sovereign immunity in certain cases. There is a distinct contradiction in a democratic government that does not allow itself to be subject to civil legal action brought about by the same people that the government claims to represent. However, while sovereign immunity may seem to be the provenance of the tyrannical, it also has positive aspects to it as well.

Sovereign immunity, or "the immunity of the government from suit without its permission…," has been a controversial issue since it was first proposed during the Constitutional Convention in 1787. (Sisk 2006, 74) Alexander Hamilton, James Madison, and John Marshall were all supporters of the concept as they felt it maintained the balance of powers between the branches of government. If the federal government was subject to lawsuits from individual citizens, then both the Executive and Legislative branches of government would be subject to constant lawsuits brought about in response to any legislation, or policy, put into effect. In such circumstances, the Judicial branch of government would then have unprecedented power over the actions of the other two branches by being able to decide the legitimacy of each and every action taken by the Congress or President. It is especially important for the Executive branch to exercise a certain amount of "Executive Immunity" so as not to come under the authority of the Judicial branch of government when implementing crucial government activities like foreign policy or military affairs.(Bondy 1898, 151) Sovereign immunity, therefore, ensures the equality of the three branches of the U.S. government and maintains the delicate balance of power.