Did Confederate constitution of 1861 spur sovereign immunity ruling?


An opinion by the Georgia Supreme Court this summer that the state cannot be sued by citizens has its share of critics, but an Athens attorney has a novel complaint.

Stephen Humphreys, who has sued state officials a number of times on behalf of his clients, said the court erred by basing the decision, in part, on an interpretation of the Georgia Constitution written during the Civil War by the Confederate Legislature. 

“It’s opening cans of craziness across the state,” he said.

Justice Keith Blackwell, who wrote the opinion for the unanimous court, rests his analysis on both the English common law concept of sovereign immunity and the more American idea of judicial review which says that courts have the authority to rule on whether laws violate the Constitution.

The 1861 state constitution says laws passed “in violation of the fundamental law are void; and the Judiciary shall so declare them.”

So, judges can rule on the constitutionality of state law. But Blackwell wrote, “We find no indication that this constitutional reference to judicial review would have been understood in 1861 to imply a right of action against anyone, much less a right of action against the state.” Blackwell said the state can waive its immunity, but legislators must do that for each individual law.

While everyone agrees the opinion is a significant statement by the court, not everyone agrees with Humphreys’ complaints about its Confederate roots. Read more on the issue in this week’s AJC Watchdog column here.


Reader Comments ...

Next Up in Georgia Politics

The Right points to Franken as a symptom of the Left’s hypocrisy
The Right points to Franken as a symptom of the Left’s hypocrisy

The Right has always questioned Franken’s qualifications for the Senate. The revelations of sexual misconduct by the Minnesota  Democrat have added fuel to the fire. A roundup of editorials Friday takes a look at the issue. From The Boston Herald: It’s “physician heal thy self” when it comes to sexual harassment in Congress...
In the light of the news about Al Franken, will the Left own its own sexual misconduct issues?
In the light of the news about Al Franken, will the Left own its own sexual misconduct issues?

Will Sen. Al Franken’s conduct call into question Democrats’ commitment to championing women who have been sexually harassed? A roundup of editorials Friday takes a look at the issue. The Week: Do the Democrats take sexual harassment seriously? We’ll see. From The New Yorker: As the two apologies from Franken show, men still need...
The Week: A Moore win in Alabama could thrust Isakson into spotlight
The Week: A Moore win in Alabama could thrust Isakson into spotlight

If Republican Roy Moore wins Alabama’s special election to the U.S. Senate next month, and if fellow senators choose to expel him from the chamber over accusations of sexual misconduct involving the candidate and teenagers when he was in his 30s — so a couple of huge “ifs” — Georgia U.S. Sen. Johnny Isakson could...
Opioid epidemic’s ripple effects: Hepatitis C spreading in Georgia
Opioid epidemic’s ripple effects: Hepatitis C spreading in Georgia

Georgia’s opioid epidemic isn’t just destroying families and local economies, it’s also spreading other diseases. For the first time in history, Georgia’s level of hepatitis C infection has surpassed 14,000 victims in one year, the state epidemiologist on Thursday told a study committee in the Georgia House of Representatives...
The Right wonders if the ‘Jeff Sessions option’ can save a Senate seat
The Right wonders if the ‘Jeff Sessions option’ can save a Senate seat

What can be done about Alabama’s Senate race? Maybe Jeff Sessions has the answer. A roundup of editorials Thursday takes a look at the Roy Moore mess. From The Federalist: Don’t be fooled by Moore. Even if there were no allegations of sexual misconduct, he is not what he claims to be. From The Daily Caller: When it comes down to it, does...
More Stories