by Brian A. Wilkins
8/31/2010 (links and photos updated December 24, 2018)
ORIGINAL LINK: http://blog.operation-nation.com/2010/08/31/eleventh-amendment-is-unconstitutional-must-be-repealed.aspx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 our absolute right to bear arms and self-defense contained in the Second Amendment. Its all great theater and 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 said 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, which is ironically the government’s FIRST AMENDMENT after the Bill of Rights. It was ratified on February 7, 1795, voiding the Chisolm decision and laying the foundation for criminal behavior among state officials. 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. These 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. It essentially 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 the 1976 case Imbler v. Pachtman) 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 the rights of Americans are blatantly violated. But it takes years of litigation and money for an attorney that most Americans cannot afford, to actually attempt holding malfeasant officials accountable, thus the criminals will get away with it anyway.
Police all across the United States 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 for all other Americans.
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, punitive fines, and restitution to thousands of unwitting Americans.
The new law embolden judges and prosecutors like no other time in U.S. history. One of the more disgusting cases in recent memory (and a rare occurrence of accountability), 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 and an $8.7 billion gift to private prisons prevented that), neatly incorporated the Imbler decision, and further shielded state and federal prosecutors from any sort of accountability for their actions. This resulted in an astronomically creepy spike in the U.S. prison population from the time Reagan was inaugurated. The numbers don’t lie.
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” (since women are noticeably absent and all black people were slaves at the time), 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 used to protect one another.
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 person of manufactured crimes, and there is no re-course for the victim.
Finally, and obviously, there is no “equal protection of the laws.” If that were the case, anybody 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.”
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 and people. But the reason the Eleventh Amendment will always stand is because we, as citizens, are asking the very judges, prosecutors, and cops 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 candidates 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: “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.