Effect of Governmental Immunity on Declining Governmental Ethics--the King can Do Wrong‪!‬

Some of the decline in ethics in government must be attributed to the awareness of governmental officials that they generally cannot be sued for their wrongful or unethical conduct. The long standing judicial doctrine of sovereign immunity, which prevents citizens from suing the government unless the government gives its consent to such suits, is an antiquated carryover from the days of the near-absolute power of the English kings (1) and is based on the philosophy that the sovereign cannot commit a legal wrong and, thus, should be immune from civil suit. While the doctrine fell into some disfavor in the past, recently U.S. courts have applied the doctrine more vigorously to continue the judicial notion that citizens cannot bring suits against the government. The justification seems to be that the government would be hindered substantially in its performance of public duties if it were subjected to repeated suits as a matter of right of any citizen, but more realistically the reason for the court's continuing application of such an antiquated doctrine is grounded on another established but often inconsistently applied doctrine, the principle of stare decisis. Based on this principle, the Supreme Court has treated the tenet that citizens cannot sue their government as a fabric of our jurisprudence from the time of the drafting and ratification of the Constitution and the institution of the first U.S. courts to present. (2) Stare decisis is a Latin legal term which means "to stand by decided cases." It expresses the notion in common law that prior court decisions must be recognized as precedents. However, the doctrine of stare decisis has not been applied consistently. Depending upon the subject matter of a particular decision, a majority of members of the Supreme Court may choose to overrule a previous decision they disapprove. (3) The doctrine of stare decisis treats as general law prior court opinions, specifically those of the U. S. Supreme Court. However, some would question whether this treatment provides for judicial usurpation of the legislative power granted Congress by Article I of the Constitution, which provides that Congress alone can make the laws. (4)