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Sovereign Immunity

 
 
gollum
 
Reply Mon 30 May, 2011 07:40 pm
As there is nothing in the U.S. Constitution about sovereign immunity, what is its legal basis?

Is the basis a federal law enacted by Congress? If so, would an enabling provision in the Constitution be needed?

Could someone file suit that notwithstanding any federal law, there is no constitutional basis for sovereign immunity?

Also as a matter of good public policy, why shouldn't the government be subject to the same law as everyone else?
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Finn dAbuzz
 
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Reply Mon 30 May, 2011 09:09 pm
@gollum,
The origin is English Common Law.

On the one hand you can understand why the King would be all for preventing his subjects from suing him, and on the other you should be able to understand why the "Sovereign" or the "State" cannot be constricted by the lawsuits of citizens.

Government would come to a grinding halt if any citizen could sue it for it's decisions or actions. It a practical matter, and practicality has always and always should be a consideration of the judiciary.

There is a reason why Common Law has endured, larely intact, for centuries.

Actually, whenever legislatures have attempted to meddle with it, it usually fucks things up royally.

I.e Dram Shop Laws.
gollum
 
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Reply Tue 31 May, 2011 06:43 pm
@Finn dAbuzz,
Finn dAbuzz-
Thank you. I'll take your word for it.

I understand why kings who practiced divine right favored sovereign immunity. I would have thought that those who wish for the country to be a republic would favor abolition of sovereign immunity.

Major corporations are able to handle lawsuits without sovereign immunity. Also judges can throw out cases without merit.
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