Eleventh Amendment Is Unconstitutional; Must Be Repealed

by Brian A. Wilkins
8/31/2010

ORIGINAL LINK: http://blog.operation-nation.com/2010/08/31/eleventh-amendment-is-unconstitutional-must-be-repealed.aspx

Fox News and right wing groups are screaming for a repeal of Sec. I of the Fourteenth Amendment (the Citizenship Clause) in an effort to prevent anymore Mexicans from becoming U.S. citizens. Meanwhile liberals and MSNBC continue crying about the absolute right to bear arms and self-defense contained in the Second Amendment. Its all a great distraction from the Eleventh Amendment, which encourages and protects malfeasance and flat-out criminal behavior by judges, prosecutors, police, and many other government officials in the United States.

The Eleventh Amendment of the U.S. Constitution was ratified on February 7, 1795, two years after an infant U.S. Supreme Court ruled in the case of Chisolm v. Georgia. In that case, which was an early test of the differences between U.S. law and British law, the Supreme Court ruled that States are not immune from suit brought by private citizens. During the Revolutionary War (1775-1783), a South Carolina merchant named Robert Farquhar sold supplies on credit to the State of Georgia. Georgia refused to pay back the debt because they later learned Farquhar was a loyalist to England. Alexander Chisholm, the executor of Farquhar’s estate after he died, filed a lawsuit vs. Georgia in the U.S. Supreme Court, which back-then, was permitted by law and procedure.

The State of Georgia refused to answer the federal complaint, claiming it had sovereign immunity from lawsuits or any other prosecution brought by a citizen. Article III, Sec. 2 of the U.S. Constitution says otherwise, and the Supreme Court ruled in favor of Chisholm in 1793. Less than a year later, the U.S. Congress passed the Eleventh Amendment (ironically, the government’s FIRST AMENDMENT after the Bill of Rights) and it was ratified on February 7, 1795, voiding the Chisolm decision and laying the foundation for criminal behavior among state officials. And since its ratification, the Bill of Rights, meant to protect citizens of the United States, has progressively lost the power the American people thought it gave them.

The term “the State” has been made synonymous with certain individuals, particularly prosecutors and judges, who are the only people in the United States who can LEGALLY break the law, because they are “the State.” The Eleventh Amendment provides absolute immunity from all civil actions brought by U.S. citizens against malfeasant, criminal state officials, and it gives said corrupt officials a constitutional hiding place when they know they’ve done wrong.

The United States Supreme Court has repeatedly ruled (e.g. in Imbler v. Pachtman [1976]) that all judges and prosecutors are protected by absolute immunity (via the Eleventh Amendment or British tradition, depending on who you ask) from any and all civil actions and, for the most part, criminal prosecution as well. The Court has also repeatedly ruled that it is “in the public’s best interest” for judges and prosecutors to have absolute immunity, aka no accountability, for their actions. Cops, jail guards, and probation/parole officers, and U.S. agents are all given the more practical “qualified immunity,”  which is what all government officials should have.

Qualified immunity is a simple concept: don’t violate American citizens’ WELL-ESTABLISHED Constitutional rights, while acting as a cop, U.S. agent, etc., and you’ll QUALIFY for immunity from virtually all prosecution. In other words, respect our First Amendment rights to freedom of speech, press, and religion; our Sixth Amendment rights to a speedy trial and to competent counsel when “the State” prosecutes American citizens; etc. These aforementioned individuals are “disqualified” from this constitutional perk when our rights are blatantly violated. But it takes years of litigation and money for an attorney that most Americans cannot afford, to actually attempt holding the malfeasant official accountable, thus the criminals will get away with it anyway.

Police all across the U.S.A. frequently rape, murder, and assault American citizens and are rarely given a punishment remotely close to the crime. There are currently at least three cases pending in state courts where cops have murdered an American citizen, and were either only charged with involuntary manslaughter or only found guilty of involuntary manslaughter. This is the unspoken, unwritten perk of “qualified immunity”: a cop can kill someone while on duty and, as patterns and U.S. tradition dictate, they will be charged with a crime such as “involuntary manslaughter” as opposed to the murder charges and potential death sentence you or I would face.

The “absolute immunity” for judges and prosecutors is even scarier. Republicans love Ronald Reagan so much because of his 1986 crime bill, his privatization of prisons, and the subsequent money grab from cheap prison labor and unpayable fines and “restitution” to thousands of unwitting Americans.

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And in one of the more disgusting cases in recent memory (and a rare occurrence of acountability), Judges Mark Ciavarella and Michael Conahan, two former Pennsylvania judges, locked up children for years…for money.

Reagan’s crime bill, which could have been fixed by Democratic President Bill Clinton’s 1994 crime bill (but political pandering prevented that), neatly incorporated the Imbler decision, shielding state and federal prosecutors from any sort of accountability for their actions, which resulted in an astronomically creepy spike in the U.S. prison population from the time Reagan was inaugurated. The numbers don’t lie.

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While both sides of the political spectrum casually demand “transparency in government,” the concept remains impossible because of Eleventh Amendment immunity. Our Declaration of Independence is not only hypocritical, when it declares “all men are created equal “(note: women are noticeably absent from this statement), but is flat-out false because of the Eleventh Amendment. When a class of people are immune to the same justice system which will imprison you five years for having a joint in your pocket, it becomes a real-life comedy, as opposed to the “comity” the state and federal judiciaries protect one another with.

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The bottom line is that the Fourteenth Amendment renders the Eleventh Amendment unconstitutional. The Fourteenth Amendment clearly states,  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Let’s break this down so the U.S. Supreme Court can understand: the Eleventh Amendment, in and of itself, “abridge[s] the privileges or immunities of citizens of the United States” because it allows certain citizens of the U.S. to be immune from the same laws, treatises, and codes we are all forced to obey. States frequently “deprive any person of life, liberty, or property, without due process of law” when a criminal-minded judge or prosecutor has an agenda and convicts an otherwise innocent citizen of manufactured crimes, and there is no re-course for the victim.

And finally, and obviously, there is no “equal protection of the laws” because if that were the case, you and I could lie under oath, file false police reports, kill, rape, and assault people, and either not be charged with a crime at all, or be sentenced to a fine and/or community service. Former Major League Baseball pitcher Roger Clemens, who is currently facing federal prosecution for perjury, and his attorney should argue in court that judges and prosecutors are allowed to lie in court, so he should be able to lie under oath as well, pursuant to the Fourteenth Amendment’s “equal protection clause.”

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It is not unprecedented for one U.S. Constitutional Amendment to void another (see the 18th and 21st Amendments) when it is clearly in the best interest of our country. But the reason the Eleventh Amendment will always stand is because we, as citizens, are asking the very judges whom are protected by this constitutional perk, to give up this virtual “get out of jail free” card they all enjoy. Nearly all U.S. Senators and Congress people have been lawyers and/or judges before. They would never ratify an amendment relinquishing their immunity.

We, as the people of the United States, must elect officials who view accountability as an absolute necessity in government, not an option. That means candidate for high office must support repeal of the Eleventh Amendment’s absolute immunity clause. When now-former New York State Supreme Court justice Thomas J. Spargo was convicted last year of extortion, Assistant U.S. Attorney General Lanny A. Breuer paid us all lip service and stated the obvious, declaring “fair and impartial judgment by those entrusted to carry out the laws is the bedrock of our legal system. When those sworn to uphold the law violate it, they will be held accountable. We cannot and will not allow the public’s faith in our legal system to be shaken by judicial corruption.”

It will take an entirely new generation of Congress to make something like this actually happen; something so favorable to the citizens of this country, Tea parties, liberal parties, and all the constituents of other parties should unanimously have one thing in common, and that is repeal of the Eleventh Amendment and the creation of true transparency of government. But as long as “criminal justice” remains profitable, and the conspirators are comforted by the fact they will get away with it, and voters continue blindly electing the same ‘ol politicians, this will never happen.

8 thoughts on “Eleventh Amendment Is Unconstitutional; Must Be Repealed

  1. TAMBUZI SHUJAA

    Only when the masses realize that we are being controlled by only 2% of the AmeriKKKan population, then and only then will we see the activation of “true” change. We the masses posses more power than we seem to believe. The powers that be want to cripple that power. And that power is in the ballot. We have to stop falling asleep to these corrupted politicians bedtime stories of “CHANGE” and equal treatment for all. Black, Brown, White, and all in between have to see that in the eyes of the 2%, we are nothing but livestock. Everyday being “dumb down” by false news reports by the media, idiotic game shows, and “unreality” T.V. We have to wake up people. Let’s turn the light switches on…

    Reply
  2. David Morse

    In and about the masses,if we don’t bcome color blind and stand up for our rights we’re sure to loose them.Think about it 24 against how many who deserve the rights we were born with…

    Reply
  3. Jack

    It’s as though the constitution is saying, “I’ve fallen and I can’t get up.”

    Thanks for the explanation. What can be done? Is another amendment the only solution?

    Jack

    Reply
  4. Chopswell

    One thing I know for sure; Thiscoming election, along with the one in 2012, I am going into the polls ABSOLUTELY informed on candidates stance on issues such as these and anyone, I mean EVERYONE who is for the same old school, will be voted out! I’m calling my voting registrar and ask for a full list of candidates I will be voting on next month and will be honing my research to make sure every “X” is in the right box-for the right reason!

    Reply
  5. Michael Follon

    You write:

    ‘And since its ratification, the Bill of Rights, meant to protect citizens of the United States, has progressively lost the power the American people thought it gave them.’

    ‘The result was the speedy ratification in 1795 of the Eleventh Amendment…This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principle of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.

    Wilson’s strident nationalism also led him to oppose the addition of the Bill of Rights to the Constitution. Based on his new concept of the perpetually sovereign people, Wilson confidently proclaimed that the proposed Bill of Rights was neither essential nor necessary. Wilson even argued that the addition of a bill of rights would be dangerous because any enumeration of rights would imply that others were not included.’ – page xxii,

    in the constitutional convention in 1787 Wilson said –

    “I know not whether I have exactly enumerated the states who have not thought it necessary to add a bill of rights to their constitutions; but this enumeration, sir, will serve to show by experience, as well as principle, that, even in single governments, a bill of rights is not an essential or necessary measure. But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgement, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered icomplete.” – page 195.

    SOURCE: ‘Collected Works of James Wilson’, VOLUME I, edited by Kermit L. Hall and Mark David Hall.

    Reply
  6. Michael Follon

    You write:

    ‘…,which was an early test of the differences between U.S. law and British law,…’

    Let me make it absolutely clear that what follows is not intended, in any way, as a criticism of the author of this post. I understand why the phrase ‘British law’ is used and hope that what I write provides clarification.

    It is possible to get confused when reference is made to either ‘British law’ or the ‘British legal system’. The phrases ‘British law’ and ‘British legal system’ are generally understood to ecompass both Scots law and English law and their respective legal systems. Although there is also Welsh and Northern Irish law (Welsh law exists within the jurisdiction of English law) and corresponding legal systems they are essentially variants of English law. The following extracts from the ‘Kilbrandon Report’ should help clarify the status of Scots law –

    ’74. …By the time of the Union a well-defined and independent system of Scots law had been established. This was recognised in the Union settlement, which provided for the preservation of the separate code of Scots law and the Scottish judiciary and legal system. Under Article XIX the two highest Scottish courts – the Court of Session and the High Court of Justiciary – were to continue, and were not to be subject to the jurisdiction of the English courts. These bodies have remained respectively the supreme civil and criminal courts in Scotland, while beneath them there is acompletely separate Scottish system of jurisdiction and law courts, with a justiciary , advocates and solicitors, none of whom are interchangeable with their English counterparts…

    76. …Nevertheless the two systems remain separate, and – a unique constitutional phenomenon within a unitary state – stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.’

    SOURCE: ‘Royalcommission on the Constitution, 1969-1973’, Volume I, Cmnd. 5460.

    Reply
  7. Pat Hamer

    Wow! I knew if anybody would follow the paper trail of the most repulsive amendment, equal in evil to slavery! I say that because repealing the 13th, was great reform, but it did not repeal the right to abuse, only the right to own people that the government can abuse!

    Having said that, every lawyer in USA knows about this, and hopes to benefit from this perverted misconstrued “doctrine of immunity” that Blackstone states, the King never had.

    More info at http://wwwthe11thamendmentcom

    Reply

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