...Everyone is familiar with William Blackstone's famous aphorism, "That the king can do no wrong, is a necessary and fundamental principle of the English constitution." But what does that have to do with us on this side of the Atlantic Ocean, we who revolted against a "God-King" with the words "all men are created equal," broke free and created a constitutional Republic?
As it turns out, precious little. In 1996, Justice John Paul Stevens wrote that sovereign immunity is a judge-made doctrine that has been "thoroughly discredited" because it is founded on the notion "that a divinely ordained monarch 'can do no wrong.'"
Not surprisingly, "Sovereign immunity … is a right that cannot be found in the text or the framers' intent," wrote recognized legal scholar Erwin Chemerinsky.
More importantly, whether the federal government is subject to the Constitution's guarantee of equal protection was asked and answered in 1995. In a reverse discrimination lawsuit brought by a small family business that installed guardrails on federal highway projects, federal lawyers argued that the federal government was exempt from the equal protection clause because of its responsibility to rectify racial injustice.
The Supreme Court rejected that notion. Justice Sandra Day O'Connor wrote for the 5-4 majority in Adarand v. Pena, "[A]ll governmental action ['by whatever federal, state, or local governmental actor'] based on race ... should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed."
Justice Antonin Scalia concurred, writing, "In the eyes of government, we are just one race here. It is American."
Another day, another legal filing and yet another unconstitutional legal assertion by the Obama administration. The end cannot come soon enough.
