Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, September 14, 2009

More on the Sovereignty Symposium at Villanova

Over the weekend, Patrick Brennan provided a synopsis of the very interesting and diverse presentations offered at the “Sovereignty” symposium on Friday hosted at Villanova Law School.  Before adding my “two or three cents worth,” as Patrick invited me to do, I want to publicly thank Patrick; his colleague, Ann Juliano; Dean Doris Brogan; and the Villanova Law Review editors for their hospitality, as well as Norman and Maryellen Shachoy, whose generosity made the program possible.  I also want to single out Nicole Garafano, the events coordinator, who made everything come together so well in a brand new building and on a day in which the skies opened and threatened to put a damper on everything.  If anyone has a chance to participate in, or attend, a symposium at Villanova, they truly have figured out how to make everyone feel welcome and every need anticipated.

Regarding Patrick’s response to my own presentation at the symposium, Patrick once wrote that he was speaking “not so much against sovereign immunity, as against sovereignty.”  At Villanova on Friday, I was speaking “not so much in favor of sovereignty, as in favor of sovereign immunity.”  My basic proposition can be summed up in these words from my presentation:  “When the decisions of the political community are challenged by individuals who dissent on political grounds or regard themselves as personally aggrieved, an entity must be recognized that is capable of speaking for the whole and resisting the reach of unelected judges tempted to question the wisdom of those decisions made through democratic governance.  By necessity, that entity is the government and the nature of that resistance is sovereign immunity.”

During the panel discussion at the Villanova symposium, I suggested that the question of federal sovereign immunity comes down to “who do you trust:  the courts or the Congress.”  The late administrative law scholar Kenneth Culp Davis inveighed against sovereign immunity, arguing that the courts would prudently refrain from invading the province of policy judgments and democratic governance through such doctrines as standing, the political question doctrine, etc.  By contrast, Dean Harold Krent of Chicago-Kent suggests that in determining how to balance individ­ual rights and remedies against preservation of democratic rule, “we trust Congress, unlike any other entity, to set the rules of the game.”  I line up with Krent rather than Davis on this point.  Indeed, as some evidence that the courts cannot be trusted to honor the legal line and not cross into the political, I cannot help but note that those who argue most strenuously against sovereign immunity also tend to be those arguing for broader standing rules, a weaker political question doctrine, and softening qualified immunity defenses.  Thus, such rules and traditions of judicial restraint, which Davis assured us would be sufficient to ward judges away from political controversies, prove to be quite permeable in the hands of those who question sovereign immunity.

Importantly, as I’ve written recently (here) and echo in the second part of what will be my Villanova symposium paper, I espouse sovereign immunity only as a starting point.  Sovereign immunity should be understood as a clear point of departure for Congress to develop a refined policy and practice of government liability in court to private complainants.  And when the federal government has been made amenable to litigation by the democratically-elected Congress, the courts should not reconstruct a broader immunity through a jaundiced and hostile interpretation of the statute.  If a statutory waiver of federal sovereign immunity is construed too strictly and narrowly, so that every statutory term is slanted against the claimant, the legislative promise of meaningful judicial relief may be frustrated.

Finally, I strongly second Patrick’s observation that Catholic law schools, through symposia, can contribute something meaningful and meaningfully different to the legal scholarly discourse.  Friday's Villanova symposium on “Sovereignty” well exemplifies this.  At this symposium, elements of Catholic intellectual thought and the possibility of a natural law jurisprudence became part of the warp and woof of the analysis, almost seamlessly becoming part of the fabric of discussion that attracted the attention of the participants and the questioners.

Greg Sisk


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