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A Lawsuit Against Arrogant Government Sparked American Independence

Declaration of Independence


Our friend and colleague constitutional lawyer Mark Fitzgibbons published an article recently entitled “How to control the IRS and America's untouchable caste of bureaucrats” (link to The Washington Examiner article below) in which he reminds us that the only way to really control arrogant bureaucrats is to make them personally liable for their illegal acts.

Such personal liability would stop arrogant government in its tracks because when a bureaucrat (or even a President?) said, “so sue me” it would be the losing party who would personally compensate the victim of their malfeasance, not the taxpayers.

The notion that the courts can, and should, stop executive branch misconduct has a long history in English law that pre-dates the American Revolution.

In an article for The American Thinker, Fitzgibbons notes that this country began with citizens having private causes of action against federal and state bureaucrats who violated the common law or exceeded their legal authority or what is known as ultra vires acts.

Ultra vires is Latin for “beyond the powers,” and in the United States the Constitution should be the measuring stick of the proper scope of government power.

In pre-revolution America the English Common Law and Acts of Parliament defined the powers of government and granted a cause of action to individuals for wrongs suffered at the hands of government, and the individuals responsible for the wrongs paid – personally.

According to Fitzgibbons, Lord Halifax, the British official reviled in America for his association with the Stamp Act, lost more money in lawsuits for trespass than he ever collected under the Stamp Act.

Sometimes, observes Fitzgibbons, citizens win a larger principle even in losing lawsuits against the government. In 1761 James Otis litigated against the Writs of Assistance. He argued brilliantly against these instruments of arbitrary power as destructive of liberty and the fundamental principles of law.

Otis lost the case, but his articulation of how the law should limit government is a landmark event.  As a result of this lost case, we now have the Fourth Amendment.

The day Otis argued the case, a younger lawyer named John Adams was sitting in the courtroom. Adams, of course, would later be one of the most influential drivers for the Declaration of Independence.

Of James Otis’ argument that day, Adams would later say, “There and then, the child of Independence was born.”

Click here to read Mark Fitzgibbons’ article “How to control the IRS and America's untouchable caste of bureaucrats”

Click here to read Mark Fitzgibbons’ article “Independence 'born' with lawsuit against bureaucrats”

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