Protecting the Right to Sue the State of Georgia When It Violates the State Constitution

Across a broad range of public interest cases, Georgia claiming that it is above the law and no one should be allowed to ask a court to protect individual rights.

The State of Georgia has argued that it cannot be sued when it violates the Georgia Constitution. That radical argument ignores more than 100 years of legal tradition and leaves the protections of the Georgia Constitution at the whim of the Legislature. If the Georgia courts take that argument seriously they will no longer be co-equal guardians of the Georgia Constitution—and the time-honored tradition of public interest litigation in defense of individual rights will cease to exist in Georgia. That is why the Goldwater Institute has joined forces with a broad collation of groups across the ideological spectrum to ask the Georgia Supreme Court to reject the State’s dangerous argument.

Across a broad range of public interest cases, Georgia is claiming that it is above the law and no one should be allowed to ask a court to protect individual rights. The only exception, according to the State, is a lawsuit explicitly authorized by the Georgia Legislature. So the Legislature would only be subject to constitutional limits when it chooses to be. That argument drains all meaning from the individual rights protections of the Georgia Constitution—including the right to free speech, the right to practice religion, the right to keep and bear arms, and the right to be treated equally under the law—unless the Legislature decides those rights are worth protecting. That’s not how constitutions work. The Georgia Constitution protects individual rights—as do the U.S. Constitution and the constitutions of all fifty states—in order to raise certain rights above the political fray and protect individuals from the whims of the majority. Constitutions hold those rights sacrosanct and depend on the courts to be the guardian of last resort. If Georgia courts needed the Legislature’s permission to enforce the Georgia Constitution, that sacred charter would place no limit on the Legislature’s power. This case gives the Georgia Supreme Court the opportunity to prevent that absurd result from occurring.