The first paragraph of COMMON SENSE by Thomas Paine keeps rattling around in my head, and I quote:
"SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices."
Paine went on at some length, in this the greatest revolutionary pamphlet of all time, to explain why this fundamental idea should cause people to discard their support of monarchy in favor of a new form of government wherein the sovereignty would be held popularly by all, instead of the few. It made "SENSE" to Paine at the time to do so. It was what he wanted honestly, and not a wicked postulation, that is, I believe Paine was not trying to get away with anything he thought was either corrupt or corruptible. Paine was a true believer.
But prescriptions of the way things ought to be are not descriptions of the way things are. As Robert Burns said, "The best laid plans of mice and of men (often go wrong)." The Framers of our Constitution for the united States of America were not gods, that is, our Constitution is a model, a guideline, a paradigm, a prescription stated before the fact of the government "We, the people-" wanted; not a description of what it was or is.
Our Constitution saying it, "shall be the supreme law of the land;" US Cons., Art. VI, ¶2, is prescriptive, not a description that such proviso has been actualized. The US Constitution is written in plain concise English so that everyone can understand it, but it is up to the People, as the collective sovereign of this country, to see to it that its provisions are executed. If only the judiciary can understand and interpret the Constitution, then the sovereign people are incompetent to know their own law! In short, having taken the right to govern ourselves from King George III by revolution, "We," now bear the burden of it.
"We" cannot properly devolve the responsibility of the exercise of sovereignty upon public servants. No true Ruler is ruled, except by conscience. "We" can not elect Rulers over ourselves and at the same time retain collective sovereignty. The sovereignty prescribed by our Constitution can only be described as real if "We" can and do exercise it personally.
All of this describes our Constitution as a prescription for the initiation of a government based upon a ministerial special trust. So, de jure (prescription), our public servants are Trustees, and as such are empowered solely by their sovereign's trust; but, de facto (description), faith that our Trustees will honor their burdens of office is no guaranty.
Finding the empirical touchstone in our courts is often easier said than done. "No one is above the law!" is a phrase which has attained a currency among us; but does it describe the way things are, or merely show what our hopes prescribe? It is just and right for us all to be equal under our laws, but are we really? {Rhetoric is the rebel's refuge.}
"Judicial immunity" is an English common law doctrine which was created by the Star Chamber Courts (c. 1607) as a derivation of the king's sovereign immunity under the "divine right of kings." But in the US of A, for a judge to claim immunity as a shield against actions brought against him by a citizen, describes an usurpation of our prescribed sovereignty, and sets judges above the common People's law like England's Titled Nobility of old. Q.E.D.
Sanity Clause, August, 1997.