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.”

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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.

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