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Suing the Government
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19336 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
6 / 1991 |
4,635 Words |
| Author
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Peter H. Schuck
Peter H. Schuck is Simeon E. Balwin professor of law at Yale
Law School. His most recent books include Tort Law and the
Public Interest (1991), Agent Orange on Trial (1987),
Citizenship Without Consent (1986), and Suing Government
(1983) |
Lawbreaking is endemic to government. James Madison, a republican without illusions, viewed this as perhaps the most problematic aspect of political life:
But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty is this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Madison taught that the toll of official wrongdoing is not fully measured by harm to individual citizens, that abuses of public power fundamentally threaten the integrity of the legal order itself, eroding the values of a low-abiding people. Justice Brandeis recognized this large danger:
In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher. For good or ill, it teaches the whole people by its example. ... If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
We know little about the amount or character of official wrongdoing in America, now or in the past. No reliable measures exist or are likely to be devised. Criminal prosecutions and convictions of public officials are increasingly common, but we do not know whether this reflects changed public attitudes toward official behavior, post-Watergate prosecutorial zeal, or growth in actual criminal activity. Civil actions in the federal courts have increased rapidly, at least until recent years. Official statistics, however, reveal only broad, undifferentiated statutory categories, not specific patterns of official wrongdoing. The explosion of such litigation since 1960 certainly reflects the extraordinary proliferation of public law rights and remedies during that period. But it does not necessarily signify that lawless attitudes among officials are more common.
Still, the rule of law is probably more precarious today than when Madison, or even Brandeis, wrote. Activist government breeds official misconduct on a large scale. Many
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