A Fatal Constitutional Flaw

We rely on Congress to make our laws. But what happens when members of the House and Senate enact policies that violate federal law -- and the Constitution? Well, apparently not much. Legislative activities are protected from judicial scrutiny by the doctrine of “sovereign immunity.” This stipulates that the actions of one branch of government cannot be challenged by the other two branches. Federal courts, for example, will not rule on the constitutionality of actions taken by lawmakers. This is also the case when government violations of our First Amendment rights are alleged. This is the fatal flaw in our constitutional system of government: laws can be ignored or broken without consequence.

We saw evidence of how this policy works last year when the Supreme Court ruled in Trump v. United States that a sitting President cannot be prosecuted for performing “official acts” even when these include purported violations of his oath of office (in inciting a mob to obstruct the peaceful transfer of power on January 6, 2021). Similarly, charges of ethical and financial impropriety leveled at Justice Clarence Thomas for not disclosing gifts from wealthy friends were dismissed on the grounds that SCOTUS is entitled to set its own code of conduct. And when Trump’s executive orders exceeded his constitutional authority in ordering federal agencies to be dissolved or congressionally approved funds to be withheld, Republican lawmakers did not cry foul.

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Even when it comes to violations of our right to free speech, the doctrine of sovereign immunity (not mentioned anywhere in the Constitution, by the way) shields members of the federal government from legal action. Last year, I learned how this works. I had written to several members of Congress about expanding the Presidential Records Act so as to require the Executive Branch to maintain records of policy-related discussions in the Oval Office, for the benefit of future historians. I had not expected any replies – the Constitution does not mandate that! – But after none came, I decided to try writing emails. However, on the various congressional websites I visited, I ran into a roadblock: in order to write lawmakers, I had to first enter my zip code to confirm that I was a constituent.

I was taken aback. Back in the early 1970s, while serving in the Army on Okinawa, I had corresponded with Senators and House members from several states about protecting the First Amendment rights of service members. Where I was then living, or where I was from, was never an issue: those legislators recognized that the constitutional question being raised deserved a response – it was not a “constituent” issue. Half a century later, this was no longer so: members of Congress only want to hear from residents of their districts and states, potential voters. A quick check of the Constitution confirmed what I had thought: this policy ignored the First Amendment guarantee that all citizens have an unabridged right to “seek redress” by petitioning the government. Being able to contact only three lawmakers out of 535 seemed pretty abridged to me. In 1978, to clarify the scope of this First Amendment right, Congress adopted a statute (5 U.S.C. 7211) stating that federal employees – like all other citizens -- had the right “individually or collectively, to petition Congress or a Member of Congress.”

This drastic restriction on communicating with the public had come about for practical reasons: the advent of email in the early 1990s had led to a tidal wave of electronic messages, mostly spam, which overwhelmed small congressional staffs. In order to better handle correspondence, one office after another had limited access to constituents. This policy has been in effect so long that we accept it as reasonable and legitimate. But allowing the public to communicate with only a few members of Congress directly contradicts what the Founders had in mind when they contemplated how “We the people” would express their views under a republican form of government.

So I decided to mount a legal challenge to this policy. With the help of a pro bono attorney, I filed a complaint in the Connecticut federal district court arguing that it was unconstitutional. We based our case on the precedent set in a few instances in which SCOTUS has found that a government agency violated a person’s constitutional rights – so-called “Bivens” cases. But the judge in New Haven would have nothing of this: he dismissed our complaint on the grounds of sovereign immunity. The practical consequence of such rulings is that ordinary citizens will continue to have almost no input on the law-making and oversight processes in Congress. Most of the legislative business in Washington takes place in committees, and these bodies are essentially “off limits” to those of us who don’t happen to have one of our own Senators or Representatives serving on them. The chances are not so great: only 20 states are represented on the Senate Judiciary Committee, and only 27 congressional districts are on the House Foreign Affairs Committee.

Given the makeup and philosophy of the current Supreme Court, resorting to legal channels seems futile. What are we then to do? The ultimate power of the people lies with our votes – and with the contributions we make to candidates. To convince Congress to change its ways will only happen if this leverage is put to use. This will have to take place at the state and district levels, since current policy does not allow the opinions of non-constituents to be heard. The arguments that need to be made are 1) current restrictions on access are illegal and unconstitutional; 2) lawmakers need to have broad public input on issues of national importance; 3) electronic mail can now be managed efficiently by artificial intelligence; and 4) members of Congress who open up their communications can count on increased campaign contributions from outside their districts and states.

Regaining the right to petition as envisioned by the Founders will be a daunting task, but doing so will restore confidence and trust in government at a time when many feel no one in Washington is listening.

John V. H. Dippel, an independent historian, has written several books on various topics in modern American and European history. In the late 1960s, he successfully petitioned several Senators to take up the cause of increasing First Amendment rights for members of the U.S. military. He welcomes the chance to lay out the case for doing so now through The Fulcrum.