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Congressional Immunity, Treason, and The United States Constitution
Congressional Immunity, Treason, and The United States Constitution
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In theory, it is impossible for one who is serving a term in the Senate or the House of Representatives to be prosecuted. The principle applied to create this widely accepted hypothesis is coined "immunity". As opposed to a municipal police officer who enjoys "qualified immunity", a Congressman enjoys "absolute immunity".
In practice, absolute immunity prevents a congressman from being prosecuted or sued during his or her Congressional term, especially while acting in an official capacity. If a Senator or a Representative votes on a bill that is unconstitutional, he is protected from arrest or civil action by a citizen who feels their rights have been infringed.
There are two legal reasons, as well as one logical one, why absolute immunity is a legal fiction rather than a fact. The first legal reason is found embedded in Article I § 6 of the United States Constitution, which should be held as the highest law of the land. The other is found in Title 42 of the United States Code, in section 1983 (42 USC § 1983).
The logical reason is that, by definition, one act of treason is to disrupt and destroy the sovereignty of a government. If laws are voted in that violate the social contract between a governing body and its citizens, then sovereignty is disrupted. If too much power is given to corporate entities rather than private citizens, then a government can be bought out; sovereignty is destroyed.
When the Framers wrote the United States Constitution, much of the Bill of Rights was derived from John Locke's Social Contract Theory. His ideas implemented were that life, liberty and property are inalienable. (This should sound familiar.) Once these rights are abandoned by a government who chose to respect and uphold them, according to Locke's theory, the government forfeits its sovereignty. The people are not obliged to remain loyal.
In the Bill of Rights, these ideas were expounded upon, though mentioned word-for-word in Amendment V. The establishment of a government that was controlled by the people, rather than megalomaniac sociopaths, was the fundamental intent of the Framers.
As mentioned, the first legal reason, found in Article I § 6 of the Constitution, states:
"...They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
Outlined in the Constitution are three exceptions to the rule that states that a Congressman shall not be arrested: Treason, Felony and Breach of the Peace. Also,
their exemption from arrest applies if, and only if, they are currently in a session, heading to it, or driving home from a session. It also limits interrogation and trial from asking about anything they said in a speech.
The Constitution does not prohibit arrest, prosecution or suit. Even under the strictest Judicial interpretation, there are those three exceptions, leaving "absolute immunity" as "quite questionable immunity".
The second legal reason, 42 USC §1983, is equally important. A § 1983 suit enables a citizen to sue a government agency for a violation of the Bill of Rights. The words of this statute are:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
This means, that while acting in an official capacity (such as an officer during an arrest, or a senator signing a bill), the Bill of Rights must be respected. Any law that is created that violates these rights is an illegitimate law. Likewise, any law in existence that violates these rights, when enforced, causes the official to be liable for damages.
"Absolute Immunity" is practiced as such because of various Supreme Court decisions, as well as the fact that it is continually allowed by the people. Keeping in mind that the Supreme Court has reversed its stand on issues over time, social pressure and the test of time should prove that it is time to reexamine the principle.
A technical examination of "Absolute Immunity" proves that it is, "More-than-somewhat-questionable Immunity".
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