# Limits on the judiciary and the "N" option play
**URL:** https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418
**Category:** Great Debates
**Created:** [May 18, 2005, 3:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418 "2005-05-18T15:29:32Z")
**Posts on this page:** 20
**Page:** 6
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 19, 2005, 4:42pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/101 "2005-05-19T16:42:05Z")
> [@Gadarene](#):
>
> Does this mean that, per my earlier post, Chief Justice Rehnquist is among those as well? đ
Apparently so. My guess is that sooner or later **Bricker** himself is going to show up there, too.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 4:47pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/102 "2005-05-19T16:47:11Z")
> [@Gadarene](#):
>
> I can find many more similar cases in which the plain language of the law was ignored because its strict application would produce an absurd result. If your response to all this, **Bricker** , is to say, âWell, sure, but theyâre not saying that the law was _wrong_âŚtheyâre just saying that the clear purpose of the statute should prevail over an overly formalistic application of its text in certain situations,â then thatâs begging the question. If there are external criteria by which we judge a statute (or an Amendment) to be âwrongâ other than the text, such inquiries are necessarily amorphous and are dependent on the weight the judge decides to give one indicia (a committee report, say, or a perusal of history), over another (common sense, say, or changed societal circumstances).
Of _course_ there are external criteria by which we construct a statuteâs meaning.
âI put the boat out on the bay.â
âI put the saddle on the bay.â
âI held the intruder at bay.â
What does âbayâ mean?
I donât argue that the words of a statute have to be read myopically. Words have meaning in the context in which theyâre written, and in light of the time they were written and the problems they were attempting to solve.
What I object to is the piling on of ad hoc assumption upon ad hoc assumption.
Do you seriously contend that the inference from âcommon defenseâ that allows Congress to authorize an Air Force and the inference from âdue processâ that allows the federal constitution to forbid regulation of abortion in the first 3 months of pregnancy are of equal weight?
âThe first three months of pregnancyâ is unbelievably specific. âDue processâ is unbelievably general. To get from one to the other suggests the lack of a repeatable, definable, principled process.
Seriously - honestly. Tell me that the notion that âdue processâ compels the conclusion that the state may not legally interfere with abortion during the first three months of pregnancy is as strong, inferentially, as any other example youâve raised in this thread.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 4:50pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/103 "2005-05-19T16:50:02Z")
> [@ElvisL1ves](#):
>
> Then youâve put yourself among those **Bricker** condemns as not respecting the Constitutionâs literal meaning _at all_. A textual approach\* is\* literal.
No, a textual approach is not literal.
Just curious - what authorities have you read that describe textualism or originalism? And which of them made the claim that textualism or originalism is literalism?
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 4:50pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/104 "2005-05-19T16:50:25Z")
Bricker see post #100, its not due process its privacy.
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 19, 2005, 4:55pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/105 "2005-05-19T16:55:53Z")
> [@ElvisL1ves](#):
>
> My guess is that sooner or later **Bricker** himself is going to show up there, too.
It was a lot sooner than I thought:
> [@Bricker](#):
>
> No, a textual approach is not literal.
Apparently nothing means anything.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 5:02pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/106 "2005-05-19T17:02:23Z")
**Bricker:**
> [@](#):
>
> Of course there are external criteria by which we construct a statuteâs meaning.
>
> âI put the boat out on the bay.â
>
> âI put the saddle on the bay.â
>
> âI held the intruder at bay.â
>
> What does âbayâ mean?
Ah, but that gets to the dueling dictionaries and to a general contextual awareness. Itâs not the same as saying, âThis statute, on its face, says X. We are interpreting it to say Y because we think Y is a normatively better result.â You say courts (and the Court) never say this anymore. I disagree.
> [@](#):
>
> Do you seriously contend that the inference from âcommon defenseâ that allows Congress to authorize an Air Force and the inference from âdue processâ that allows the federal constitution to forbid regulation of abortion in the first 3 months of pregnancy are of equal weight?
From which of my statements would you infer that this is my contention?
> [@](#):
>
> Seriously - honestly. Tell me that the notion that âdue processâ compels the conclusion that the state may not legally interfere with abortion during the first three months of pregnancy is as strong, inferentially, as any other example youâve raised in this thread.
I wonât begin to tell you that, whether or not I think itâs true. Pace Justice Thomas at his confirmation hearing, I donât know enough about _Roe_ to say what level of specificity is required. Pace Miguel Estrada, I wasnât there for the arguments; I didnât read the briefs; I havenât done the necessary independent research. My point was that the text of a statute, contrary to your previous assertion, often does not control if the court thinks itâs âwrong.â Can you defend _Hans_ and _Seminole Trbie_ on textualist grounds? If not, either those decisions are wrong or strict textualism is not a workable judicial philosophy across the board.
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### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [May 19, 2005, 5:04pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/107 "2005-05-19T17:04:03Z")
**Bricker** asked you a question, **ElvisL1ves**.
Now, Iâm no lawyer, but Iâve never understood a textual approach as mandating literalism. Bricker is, and this is his understanding also.
If you have some cite to the contrary, please provide it.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 5:07pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/108 "2005-05-19T17:07:38Z")
> [@askeptic](#):
>
> Bricker see post #100, its not due process its privacy.
> [@Roe Court](#):
>
> This right of privacy, whether it be founded in the Fourteenth Amendmentâs concept of personal liberty and restrictions upon state action, as we feel it isâŚ
Which clause of the Fourteenth Amendment gives rise to the concept of personal liberty and restrictions upon state action?
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 19, 2005, 5:08pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/109 "2005-05-19T17:08:38Z")
And I asked \*you \* a question even earlier, **MM**. Gonna answer it?
**Bricker** has chundered on at great length on the topic, as you may know, but without being able to point to any examples that hold up to scrutiny. He has, however, been quite convincing that the thing he decries is simply in the eye of the beholder at best and rank rationalization at worst.
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### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [May 19, 2005, 5:13pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/110 "2005-05-19T17:13:15Z")
> [@ElvisL1ves](#):
>
> And I asked \*you \* a question even earlier, **MM**. Gonna answer it?
I did so. You just didnât like my answer.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 5:15pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/111 "2005-05-19T17:15:53Z")
> [@Bricker](#):
>
> Which clause of the Fourteenth Amendment gives rise to the concept of personal liberty and restrictions upon state action?
I counted 16 cites for this principle in the single paragraph I quoted in post 100. You can read them as well as I.
Whats your position on Brown v. Board of Ed.? That is a good example of a living breathing walking animatronic Constitution. The founders certainly saw nothing wrong with denying education to black kids. Along comes the upity Libruls and say its unconstitutional. Even though Plessy had no problem with seperate but equal. Or do you think Brown is wrong headed judicial activism and Plessy is just fine?
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 5:17pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/112 "2005-05-19T17:17:22Z")
> [@](#):
>
> Can you defend Hans and Seminole Trbie on textualist grounds?
For those of you who donât know what the heck Iâm talking about here, by the way, let me provide the background.
The Eleventh Amendment reads as follows:
> [@](#):
>
> The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Letâs break that down.
1. âThe Judicial power of the United States shall not be construed to extend to any suit in law or equityâŚâ Weâre talking about limits on the jurisdiction of the federal courts here; the 11th Amendment is essentially carving out an exception to Article III, which sets the boundaries of federal jurisdiction more generally.
2. ââŚcommenced or prosecuted against one of the United StatesâŚâ So weâre talking about people who arenât allowed to bring suit against states in federal court.
3. ââŚby Citizens of another State, or by Citizens or Subjects of any Foreign State.â So here are the people that canât sue states in federal court, per the Eleventh Amendment: citizens of _another_ state, and citizens or subjects of foreign countries. Thatâs it.
âŚAnd yet _Hans_ held, and (about 100 years later) _Seminole Tribe_ affirmed, that the Eleventh Amendment also protected a state from being sued in federal court by its own citizens.
I donât necessarily think thatâs a bad result. But I donât think itâs reflected in the text of the amendment whatsoever. If anything, the text of the amendment excludes citizens of that state from its purview by specifically naming the other two types of citizens: those of other states and those of other countries. It could easily had said âThe Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted by Individuals against one of the United States,â if thatâs what it meant. But it didnât. So you need to look outside the text to say that citizens of the state are barred from bringing federal suit against it.
My question is, can that result be justified on textual grounds. And, if so, how?
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 19, 2005, 5:17pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/113 "2005-05-19T17:17:49Z")
You answered only the half of it that you wanted to answer.
Once again, whatâs the difference between ânot that much of a stretchâ (good) and âpenumbraâ (bad)? Or are you part of the ânothing means anythingâ crowd too, with the disadvantage of pretending you arenât?
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### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 5:28pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/114 "2005-05-19T17:28:02Z")
ElvisL1ves, welcome to the world of the republicans, where ducking questions, having a belief which you refuse to change, despite the fact it is not supportable outside of faith, despite their claims otherwise, and pretending to answer questions, but really answering strawmen, then accusing your opponents of doing the same are all perfectly acceptable behavior. You are not one of them, but you seem to have found yourself in their country, arguing with them.
**The World of the Republicans** : Population�
Hey, what is the population, anyway? If you feel like taking a break from another session of the same old, same old, feel free to tell me, in your opinion, how many people are on this board, who use such tactics. No need to name names, just numbers, in your opinion, for I am a little curious.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 5:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/115 "2005-05-19T17:29:13Z")
> [@Scott Plaid](#):
>
> **The World of the Republicans** : Population�
>
> Hey, what is the population, anyway? If you feel like taking a break from another session of the same old, same old, feel free to tell me, in your opinion, how many people are on this board, who use such tactics. No need to name names, just numbers, in your opinion, for I am a little curious.
42
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 5:30pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/116 "2005-05-19T17:30:52Z")
Hey I bet if we mention Lawrence v. Texas a lot more people will jump into this discussion.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 5:34pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/117 "2005-05-19T17:34:47Z")
> [@](#):
>
> Hey I bet if we mention Lawrence v. Texas a lot more people will jump into this discussion.
Thatâs not nearly as sexy as a heated discussion on the textual limits of state sovereign immunity.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 5:40pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/118 "2005-05-19T17:40:32Z")
**Mr. Moto** Since Bricker is taking a break would you consider giving us your thoughts on Brown v. Board of Ed.?
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 19, 2005, 5:52pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/119 "2005-05-19T17:52:28Z")
> [@Scott Plaid](#):
>
> You are not one of them, but you seem to have found yourself in their country, arguing with them.
I consider it a solemn obligation. If we allow bullshit to go unexposed, and its proponents to feel righteous, then truly the terrorists will have won.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [May 19, 2005, 6:17pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/120 "2005-05-19T18:17:15Z")
> [@askeptic](#):
>
> **Mr. Moto** Since Bricker is taking a break would you consider giving us your thoughts on Brown v. Board of Ed.?
Iâll give you mine even though you didnât ask. đ
_Brown_ is well founded in the 14th amendment, which was enacted to ensure that the government did not discriminate on racial grounds. âSeparate but equalâ was, to be extremely generous, found to be a failed social experiment. (In reality, it was a sham, sanctioned by the activist judges of the day.) They got the separate right, but that inevitably ended up being **un** equal. In this case, the state was found to be treating blacks and whites differently, which the 14th amendment was designed to prevent. Arkansas had denied equal protection to black children and âabridged the priviledgesâ they recieved from the state.
And note that the decision didnât declare education to be a right, per se (emphasis added):
> [@Earl Warren](#):
>
> In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, **where the state has undertaken to provide it** , is a right which must be made available to all on equal terms."
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