Wednesday, April 18, 2007

A Quantum Theory of Sovereign Immunity?

Just a quick note here, regarding Alden v. Maine and sovereign immunity.

I'm wondering if there's an argument to be made that the doctrine of sovereign immunity as expounded by Kennedy could be considered violative of the Article IV guarantee of a "Republican Form of Government."

Assume, arguendo that Kennedy is basically right and that the doctrine of sovereign immunity survives wholesale transplantation from a monarchical regime of law to a Republican one. In the monarchical regime, the sovereignty of the state was co-extensive with the body of the King. In a Republican regime, the sovereignty of the state must then be logically co-extensive with the body of the People.

As the ultimate repositories of state sovereignty, "the People" then would each constitute in their person an "atomic unit" of sovereignty.

Now, to state this proposition in its fullest absurdity, one could then argue that "sovereign immunity" is a defense available to any citizen before a court of law (hello, anarchy!).

But why shouldn't individual citizens then inherit a "residuum of sovereign immunity" commensurate with their embodiment of the sovereign authority of their state? Specifically, if a sovereign cannot be prosecuted for lawlessness without its own consent, then no citizen should be held to account for violation of a law of the state of which that citizen is unaware. Ignorance of the law should be a valid excuse under the same logical principles of sovereign immunity (read through the lens of Article IV).

Since a person ignorant of the law cannot give consent to be subject to it, wouldn't it be logically consistent with such a Constitutional theory (untethered as it is from Constitutional text) to allow ignorance as an excuse?

There's more to this than I care to develop at present. But hopefully I'll get back to this line of reasoning.

0 Comments:

Post a Comment

<< Home