Today in Supreme Court History: January 22, 1890

1/22/1890: Hans v. State of Louisiana argued.

Comments

[DaivdBehar]

I would like to reverse this fictitious decision. It denies the plain language of the Eleventh Amendment. That Amendment itself was a crime, and is void for criminality. It was to defraud the bond holders of state debt.

Sovereign immunity is itself unconstitutional. It is justified by the Sovereign's speaking with the voice of God. That is just psychotic, and also fictitious. He speaks only in his own selfish interest. In Prussia, one could sue the Emperor. His lawyer would show up in court, and defend him.

Liability will shrink the enterprise. Immunity will grow it. Anyone supporting smaller government should support the reversal of this lawless, crazy decision. Immunity is justified by the newness of an enterprise. Government does not need any immunity. It does nothing well. It stinks up everything it does save for worthless rent seeking, a form of armed robbery. Its immunity is a factor in its stank.

[apedad]

You can't sue the "government" but you still can sue the Governor, President, Attorney General, etc, in their official capacities, so I don't see the problem.

[DaivdBehar]

They can sued in the fictitious manner as individuals, not in their as part of government, the real culprit. Only lawyer fees can be collected. The government defendant has to consent to any compensation for its horrible malfeasance. That is a crazy arrangement. It stinks at everything, and should be made to pay for its damages. It will then improve.

The Congress, the Supreme Court, the President should all be made to pay. They should carry liability insurance as the lawyer forces everyone else to. If they do not want ruinous litigation, stop hurting people. If insurance is cancelled due to excessive payouts, government deserves to be shut down.

[Dilan Esper]

Hans is underappreciated on the list of "worst Supreme Court decisions". You are quite correct that there's a strong historical argument that the US was not formed with any broad conception of sovereign immunity, and certainly not any sovereign immunity of the states against the federal government.

But having said that, I will say this- just about every country in the world has SOME notion of sovereign immunity. While it may have originated out of "the king can do no wrong", it has evolved into a tool to ensure separation of powers and international comity (and, in the US, federalism as well). At this point, as dumb as Hans is, it's the law, we've lived with it for a long time, it works reasonably well, and there's no reason to overturn it.

[DaivdBehar]

If you support liability of private parties to deter, to protect the public, to compensate for injury, you should support government liability. Liability was also a brilliant invention 5000 years ago to replace endless cycles of retaliatory violence that made life unlivable. Do you think immunity is a factor in government's doing nothing well, save for rent seeking? If someone has no consequence for poor practice, why improve?