OUTLANDISH CONSPIRACY THEORIES: Reconstruction of the fables
Historical myths and urban legends get new lease in Georgia 2019
“Maybe these maps and legends have been misunderstood.”
Pretty much no sentient Georgian in recent years, with the possible exception of Howard Finster, could routinely recapture the vision from this former debtors’ colony — and see through the mind’s eye what transpired to make American history out of this state’s original sins: greed and corruption.
In fact, Georgia political corruption, deep-rooted since colonial days, provided the source material for some of the original landmark opinions of the United State Supreme Court, as the new jurists staked out the law of the land for the young republic in the late 1700s and early 1800s.
Take the 1810 decision in Fletcher v. Peck. It nominally stands for the bland proposition that contracts will be honored (if that sounds quaintly obvious today, try enforcing a one-sided letter of intent with the Kremlin).
But the roots of the decision are much more venal and complex — or, rather, corrupt, since the contracts in question were obtained by criminal means — and the court did not consider the issues of unconscionability, or contracts for an illegal purpose. But there I go again, letting the law get in the way of a good story.
The specific question before the court was whether contracts for resale to bona fide purchasers could be rescinded by an act of the legislature. Georgia did, however, provide the serious motive for trying to upend this cornerstone of commercial law.
The lawsuit arose from an Act of 1795, in which then-Governor George Matthews and certain members of the Georgia legislature took bribes to enact a sale of most of the Yazoo lands that now comprise Alabama and Mississippi, aptly christened “Bourbon County,” to a secret society of land speculators. The corrupt Georgia government officials sold thousands of square miles, 35 million acres — for $500,000, or less than two cents an acre — to the politically-connected companies that bribed the legislators.
In response to the public outcry at this open and obvious corruption, a whole new wave of representatives were elected in 1796. The would-be reformers passed another act rescinding the act of bribery and corruption, invalidating the ill-gotten title to those immense tracts of land.
But the new legislators did not stop at passing a new act to replace the old, tainted law.
As only UGA Law of Legislative Government Professor R. Perry Sentell, Jr. could recount, in one of my favorite law school classes: Outraged Georgians gathered at the statehouse grounds of the then-capital of Georgia, Louisville, and set up a giant magnifying glass, catching “Holy Fire from Heaven,” and concentrated it on the text of the now-disfavored statute to bring about the “Repeal by Incineration” of the “Bourbon County Act” by which the Yazoo land fraud was perpetrated.
Now that is what you would have to call a true expression of disgust. One wonders if Georgia can muster similar outrage for corruption by state officials in the Empire State of the South today.
By the time of the incineration, however, many parcels in present-day Alabama and Mississippi had already been resold — at immense profit to the land speculators — and the U.S. Supreme Court ruled in Fletcher v. Peck that the Georgia legislature could not rescind those contracts.
So the holding, that contracts are inviolable, was not as noble as it sounds, and the state of Georgia was literally born awash in corruption, and baptized our new nation in it.
The other important principle established by this decision, validating the sanctity of contract (while ignoring the criminal origins), was that the U.S. Supreme Court firmly established its authority to invalidate state laws. Hold that thought for when we fast forward back to 2019.
In another foreshadowing of greater foreboding, Fletcher v. Peck also hinted that Indians might not hold title to their own lands. Legal title magically resided, instead, in the government of the transplanted former European immigrants. And sure enough, Georgia was as bad as its word, reneging on a series of compacts and treaties — which were not as inviolable as the sale of lands contracted by way of bribery — to drive out the Creeks and Cherokees.
So, yet another early US Supreme Court decision — again arising out of Georgia, in Cherokee Nation v. Georgia — led directly to the Trail of Tears. In that case, the Cherokees tried to use the palefaces’ own court system to get an injunction against an enactment of the Georgia legislature stripping the Cherokees of their ancestral lands.
As we can tell from real estate development in North Georgia today, the Cherokees effectively lost, in 1831, because the Supreme Court declined to hear the case on jurisdictional grounds. As Chief Justice John Marshall said at the time, the dependent Indian “wards” were in no position to dispute their white male Georgia “guardians.”
The U.S. Supreme Court reversed direction on the question of Indian autonomy in Worcester v. Georgia. In that case, Georgia authorities sought to prosecute white settlers living in Indian territory — now Gwinnett County, which some still say remains uncivilized — in violation of a statute that barred non-Indians from living there to escape the authority of the state government. In the Worcester case, the Supreme Court held that Georgia could not intermeddle in the affairs between the United States and a sovereign Indian nation. This contradicted the dependent-ward outcome of Cherokee Nation v. Georgia, but President Andrew Jackson ignored the high court’s ruling and ordered the removal of the Cherokees, anyway.
Most relevant to political battles raging today is the case of Chisolm v. Georgia, in which the new state in the newly-minted nation said it did not have to pay its debt from colonial bonds. Georgia relied on a doctrine near and dear to King George the Third’s heart: sovereign immunity.
Sovereign immunity is based on the old chestnut that the king can do no wrong (Rex non potest peccare), for which jurists calling themselves conservatives today search for authority all the way back to Lord Coke in 1608, in the time of divine right kings, and the writings of Sir William Blackstone in the 1760s, right before the American Revolution.
The king can do no wrong, translated into the shorthand of the modern vernacular, means no one can sue the state of Georgia for any reason. Because the state of Georgia says so.
Of course, that notion of divine right royalty was (until recently?) squarely rejected by the new American nation — and some argue the new U.S. Constitution also rejected the English common law doctrine of sovereign immunity along with the prohibition on royal titles.
Legal philosophy aside, the state of Georgia was addressing a more practical problem in 1792, at the inception of the American republic, only three years after the new U.S. Constitution went into effect, in 1789.
Not so ironically, the former debtors’ colony was trying to avoid its debts. Like other colonies, it had purchased goods on credit and issued bonds to pay for the war against the British.
An estate executor to one of the bondholders who lived in South Carolina was trying to collect on the IOU. Georgia maintained it did not have to pay, and it could not be sued on the debt (which, don’t forget, is essentially a contract to repay a loan, as in Fletcher v. Peck). Georgia, in fact, actually refused to appear before the court where the case was filed. (Do not doubt that you will find many of these past acts of our forefathers prophetic, as they are repeating themselves today, in ways that will have to wait for future installments of CL to explain, unless you, too, have the vision of a Howard Finster).
Some might say that this was not a principled position for the state of Georgia to take, that it could just not pay — without even having to show up in court or say the check is in the mail.
The U.S. Supreme Court said, however, in a 4-1 decision, at the time of the inception of the republic, that sovereign immunity was strictly for the birds. Georgia, in effect, had to pay its debts. Neither King George nor his laws from across the pond could protect Georgia’s founding fathers, rascals that they were, any longer.
State governments, including Georgia’s, were so offended at the notion they could be sued by any mere, paltry individual, even a landless one, that they pushed for the Eleventh Amendment to protect states from being sued in federal court. So Georgia’s lawlessness led to the first Constitutional amendment after the Bill of Rights. Arguably, the country headed back in the wrong direction — towards kinglike authority with no accountability.
And Georgia is still very busy today, trying to resurrect sovereign immunity from the common law of divine right kings. In recent years, Georgia courts have treated sovereign immunity as an immutable precept handed down in an unbroken line from the mists of prehistory. But that is a myth, as Georgia itself has treated sovereign immunity, the doctrine that prevents a citizen from seeking civil redress in the courts against the state, most wantonly.
As recently as 1990, for example, the Georgia Constitution said that whether a citizen could sue the state depended on whether Georgia had taken out liability insurance to cover the claim. In 1991, the Georgia legislature rescued the sacred relic, sovereign immunity, from this ignoble fate, at the hands of actuaries, by saying the state and state officials enjoy sovereign immunity protection unless a law passed by the legislature expressly waives the protection bound over from the 1700s.
That is where the law stands today, and what follows is what the Georgia courts have done in the last five years to expand sovereign immunity beyond anything ever envisioned even by King George and his ministers.
The Georgia Supreme Court ruled in 2014 that sovereign immunity prevents an injunction from being issued against state agencies to require them to follow the laws the agencies are supposed to enforce. In Citizens for a Sustainable Coast v. Ga. Dept. of Natural Resources, environmentalists complained that the state agency in question was handing out beachfront development permits in violation of the law governing that process.
But the Georgia Supreme Court said the agency did not have to answer to either the citizens or the law — based on the justices’ own distortion of the English common law. The ruling — widely recognized as absurd, though no one dares tell the imperial court — holds that the state agency cannot be sued, but that state officials (it would have read king’s ministers, on a 16th-century parchment) can be sued in their individual capacities, because that was the law in medieval England.
Needless to say, this is the one — and only — part of the recent sovereign immunity expansion that other elements of state government have resisted. Only because individual state employees do not want to be sued, in place of the state, in any action on assumpsit.
The Georgia Supreme Court went on from there, accepting arguments by Georgia Attorney General Chris Carr (who never actually practiced law) that bills passed by the legislature cannot be challenged as unconstitutional, in another opinion inviting ridicule in Lathrop v. Deal. For this novel proposition, Georgia’s Supreme Court justices roamed all the way back to Blackstone and Coke, but ultimately relied on Georgia’s Confederate Constitution of 1861 as the original inception of the idea that laws enacted by the state legislature cannot be challenged as unconstitutional.
Then you get to my cases, in which I have been trying to hold state government officials liable for abusing their powers — to commit criminal acts in office, harming both the State and individual victims. These victims include Daniel Papp, Denise Caldon, Dezso Benedek, Todd Brandenburg (who had the bad luck to report a state ethics violation by a member of the Board of Regents), and Anthony Tricoli — all of whom have been victims of documented criminal fraud by officials of the University System of Georgia.
In Tricoli v. Watts, the Georgia Court of Appeals, after denying Tricoli notice and an opportunity to even be heard and argue his case, held that state officials enjoy sovereign immunity to commit crimes, notwithstanding any law that says otherwise. That includes a pattern of related felonies prohibited by the Georgia RICO Act. In Tricoli’s case, that series of related felonies included knowing falsifications of state agency financial reports, concealment of theft of $10 million in taxpayer dollars, fraud in accreditation, fraud in state audits, and resulting fraud on the US government with respect to federal grants.
All these counterintuitive judicial opinions go to the roots of our democracy, and also to current events, in which it is very much an open question whether not only the State and its Ministers, but also the President and his Cabinet, may be held accountable to answer in a court of law for civil actions, subpoenas, and even criminal prosecution.
Unlike the law enacting the Yazoo land fraud, court opinions cannot be repealed. Rather, they are reversed and vacated by an appellate court, if not overruled legislatively. I hope to be there to help set up the giant lens and affix its beam on the text of the legal opinions — on the solemn occasion of the Reversal and Vacation by Incineration of the sovereign immunity screeds in Sustainable Coast, Lathrop v. Deal, and Tricoli v. Watts.
Then we can leave Georgia’s new, expanded, and invincible version of sovereign impunity where it belongs, in the drifting thoughts of Lord Coke in 1608, in the dreamland of myths.