David Schraub

A common response to claims of bias, harassment, or discrimination is to say that these claims are made in bad faith. Claimants are supposedly not motivated by a credible or even sincere belief that unfair or unequal treatment has occurred, but simply seek to illicitly gain public sympathy or private reward. Characterizing discrimination claims as systematically made in bad faith enables them to be screened and dismissed prior to engaging with them on their merits. This retort preserves the dominant group’s self-image as unprejudiced and innocent without having to risk critical analysis of the claim’s substance.

In this paper, I suggest that the wrongness of many—though not at all—cases of microaggressions can be captured as cases of negligence. A case of negligence holds when, regardless of an actor’s intentions, he or she wrongs another in a manner that is both reasonably foreseeable and reasonably avoidable. Thinking of microaggressions as negligence answers some objections of skeptics who focus on the possibility that the alleged microaggressor “meant no offense”. It does so while retaining language explaining why a wrong was committed and suggesting what sort of corrective behavior can reasonably be demanded to avoid these wrongs in the future. I also argue that a negligence framework does a better job of phenomenologically explaining most microaggressions—both why they occur and why they are perceived as the sort of conduct that subjects the microaggressor to agent-level moral criticism. Indeed, I believe that negligence-style logic permeates many accounts that already exist regarding microaggressions, albeit without fully being recognized. Finally, in cases where it applies, the negligence framework has an advantage over alternate accounts in that it provides for consideration of both the moral culpability of the perpetrator as well as the tangible impact of microaggressions on the victim.

The doctrine of “sovereign immunity” holds that the U.S. government cannot be sued without its consent. This is not found in the Constitution’s text; it is justified on philosophical grounds as inherent to being a sovereign state: a sovereign must be able to issue commands free from constraint. The sources of this understanding of sovereignty—Hobbes, Bodin, and others—are, in turn, condemned by opponents of sovereign immunity as absolutists whose doctrines are incompatible with limited, constitutional government. This debate, and thus the usual conception of sovereign immunity, rests on a fundamental mistake. Hobbes and his peers were careful to avoid the conflation of government with sovereignty. “Sovereign” immunity, then, is an imposter doctrine that protects government officials by falsely draping them in the sovereign’s cloak. The only sovereign actor, in the American polity, is the people in the act of making or amending the Constitution. Our true, Hobbesian sovereign immunity is nothing more than our unbounded freedom to enact constitutional law.