# 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:** 7
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 6:21pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/121 "2005-05-19T18:21:26Z")
> [@Gadarene](#):
>
> Ah, but that gets to the dueling dictionaries and to a general contextual awareness. It’s not the same as saying, “This statute, on its face, says X. We are interpreting it to say Y because we think Y is a normatively better result.” You say courts (and the Court) never say this anymore. I disagree.
I concede the point. Courts DO say this still.
> [@](#):
>
> 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.
Let’s start at the beginning, with _Chisholm v. Georgia_. States can be sued, sez the Court. Outrage quickly follows, and the country adopts the Eleventh Amendment. Then along comes Hans, who says, “Hey, Louisana defaulted on some bond payments, I’m trying to sue them, and they claim sovereign immunity. But they don’t have it - the Eleventh Amendment only prohibits suits against states by citizens of other states, or by citizens of a foreign country. I’m a Louisanan, suing Louisana, so the Eleventh Amendment doesn’t apply.”
The Court agrees.
I think it reached the right result, but not because it read anything into the Constitution. It reached the right result because _Chisholm v. Georgia_ was wrong to begin with, and states, under our dual federal system, have always been sovereign. As sovereign entities, they must consent to be sued.
So if I had been sitting on the _Hans_ court, I would have concurred in the result. And I would I be REALLY old right now.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 6:28pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/122 "2005-05-19T18:28:38Z")
> [@askeptic](#):
>
> 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?
Prior to the passage of the Fourteenth Amendment, it was perectly constitutional to deny education to black kids.
Here is why textualism is NOT literalism (take note, **ElvisL1ves** ): if the text of the Fourteenth Amendment is read and applied literally, it does not permit ANY legal classifications. There’s no exception clause for age; there’s no exception clause for criminal acts, and there’s no exception clause for citizenship. Laws that restrict drivers and voters based on age, laws that say a felon can’t own a gun… all of these would be impermissible upon a literal reading of the Amendment’s words.
I’m not arguing for that. I’m arguing against making ad hoc inferential leaps.
---
### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 6:36pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/123 "2005-05-19T18:36:09Z")
Thanks John Mace, but what I was getting at was that Bricker and MM seem to feel that original intent and textualism are to be strictly adhered to. I asked the question about Brown because it is pretty clearly divergent from original intent. One can hardly claim that the framers or the writers of the XIV Amendment intended the result in Brown. In that case either Bricker has to admit the weakness of his position or state that segragation is acceptable. I doubt he will do either. In fact he seems to be pretty much ignoring me. Thats OK, it only hurts a little.
---
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 19, 2005, 6:44pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/124 "2005-05-19T18:44:58Z")
> [@Bricker](#):
>
> I’m not arguing for that. I’m arguing against making ad hoc inferential leaps.
You just can’t identify the difference.
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [May 19, 2005, 6:48pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/125 "2005-05-19T18:48:25Z")
> [@askeptic](#):
>
> I asked the question about Brown because it is pretty clearly divergent from original intent. One can hardly claim that the framers or the writers of the XIV Amendment intended the result in Brown.
Why? It’s not clear to me at all. In fact, the opposite is clear. Isn’t that way “separate but equal” had to be invented in the first place?
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 6:50pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/126 "2005-05-19T18:50:40Z")
> [@askeptic](#):
>
> Thanks John Mace, but what I was getting at was that Bricker and MM seem to feel that original intent and textualism are to be strictly adhered to. I asked the question about Brown because it is pretty clearly divergent from original intent. One can hardly claim that the framers or the writers of the XIV Amendment intended the result in Brown. In that case either Bricker has to admit the weakness of his position or state that segragation is acceptable. I doubt he will do either. In fact he seems to be pretty much ignoring me. Thats OK, it only hurts a little.
The framers? No. The writers of the XIV amendment? I’m not so sure I agree with you here.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 6:51pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/127 "2005-05-19T18:51:50Z")
> [@](#):
>
> I think it reached the right result, but not because it read anything into the Constitution. It reached the right result because Chisholm v. Georgia was wrong to begin with, and states, under our dual federal system, have always been sovereign. As sovereign entities, they must consent to be sued.
All right. Fair enough.
But three questions:
1. Where in the Constitution does it say that states are sovereign entities?
2. Article III says, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [and] . . . between a State and Citizens of another State . . .” Is it your argument that this does not give federal courts jurisdiction, should a citizen decide to bring suit against his own state on a federal question or should a citizen of another state decide to bring suit against a state?
3. I’d still be interested in your answer to my original question. It’s after _Chisholm_; the Eleventh Amendment has been passed. It’s not an option (and, per the canons of construction, it just ain’t done) to read that amendment as wholly superfluous in light of the states’ inherent sovereign power. Does the text of the Eleventh Amendment support the notion that citizens of a state are barred from bringing suit against that state in federal court without the state’s consent?
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 6:58pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/128 "2005-05-19T18:58:10Z")
> [@](#):
>
> Isn’t that way “separate but equal” had to be invented in the first place?
What do you mean? Schools in the District of Columbia (which was wholly under the purview of Congress) were segregated prior to the passage of the Civil War Amendments, during the passage of the Civil War Amendments, and after the passage of the Civil War Amendments. The quality of education received at the black and white schools in D.C. in the late 1860s was absolutely _not_ equal. So Congress allowed blacks and whites to be treated unequally under its own watch. Even the Radical Republicans (who didn’t make up a majority of the reconstituted Congress) weren’t, en masse, in favor of integrating public education (and there’s scant evidence that any of them were integrationist to the extent of saying, like the _Brown_ Court, that separate could never be equal). Why would integrated schools, then, be in line with their intent?
(There’s an argument that the privileges and immunities clause of the 14th Amendment was intended to be a broader expression of civil rights, but that, alas, was eviscerated by the contemporaneous Supreme Court.)
---
### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 7:05pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/129 "2005-05-19T19:05:34Z")
> [@Bricker](#):
>
> The framers? No. The writers of the XIV amendment? I’m not so sure I agree with you here.
Then why was nothing done about it until 1954?
---
### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 7:12pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/130 "2005-05-19T19:12:56Z")
My point is that no one can claim that Brown is some stunning piece of jurisprudential brilliance. It was decided with little legal reasoning. They basically said Plessy is wrong. They provided no real argument. Nevertheless, does anyone here claim Brown was wrongly decided? I don’t think so. If that bit of judicial activism is OK, then Brickers arguments are reduced to I just don’t like judicial activism I don’t agree with. Which by the way is my position.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 7:13pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/131 "2005-05-19T19:13:09Z")
> [@](#):
>
> Then why was nothing done about it until 1954?
Nitpick: stuff was done about it; it was just at the state level. And (as I know you know) in 1896 _Plessy_ rejected the argument that integration was compelled by the federal constitution, so states could choose to do so, or not.
It should also be noted that, in many Southern states, there was much more integration from, say, 1870-1880 than there was in the 70 years following. In many ways, _Plessy_ legitimated the legislative subordination of black people such that states felt freer to mandate segregation than they had during Reconstruction.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 7:15pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/132 "2005-05-19T19:15:58Z")
> [@](#):
>
> In many ways, Plessy legitimated the legislative subordination of black people such that states felt freer to mandate segregation than they had during Reconstruction.
That should read, “In many ways, _Plessy_, other court decisions (such as the Slaughterhouse cases, or the decision striking down the 1870 (?) Civil Rights Act), federal indifference, and the end of Reconstruction, legitimated the legislative subordination of black people…” Since segregation began again in earnest, as I said, in the early 1880s.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 7:17pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/133 "2005-05-19T19:17:04Z")
> [@askeptic](#):
>
> Then why was nothing done about it until 1954?
The _Plessey_ court enunciated a method of applying the Fourteenth that, _if it worked_, would be constitutional.
It didn’t work.
The Plessey court had no basis on the record to conclude that their method would not work. The Brown court did.
Why didn’t the Court reach this conclusion in 1910, instead of 1940?
No one asked them in 1910, and the cases-and-controversies rule prevents the Court from acting without a case in front of it.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 7:23pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/134 "2005-05-19T19:23:35Z")
**Bricker:**
> [@](#):
>
> The Plessey court enunciated a method of applying the Fourteenth that, if it worked, would be constitutional.
Do you not, then, believe that separate is inherently unequal? (You might not; it’s a reasonable position to hold.)
Why shouldn’t the Brown court have simply said, “Look, Kansas and whoever: you’re not following the law as laid out in _Plessy_. The quality of the respective educational institutions for blacks and whites in your states are not equal – in facilities, in staffing, in funding, in results. Make them equal according to these criteria. If you don’t, or can’t, we’ll revisit the issue.” Much less activist, yeah? And probably far more in line with what the framers of the Fourteenth would have seen to be just and appropriate.
Is that a better result to you? (It might be; it’s a reasonable position to hold.)
The above parentheticals are so you know I’m not hectoring you, but rather figuring out exactly where you stand on whether the Brown decision gave insufficient deference to the sovereignty of the states, the intent of the Framers, and stare decisis.
---
### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 7:25pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/135 "2005-05-19T19:25:11Z")
> [@Bricker](#):
>
> Why didn’t the Court reach this conclusion in 1910, instead of 1940?
>
> No one asked them in 1910, and the cases-and-controversies rule prevents the Court from acting without a case in front of it.
You got some kind of secret squirrel way of knowing which cases were denied cert prior to 1954. There may very well have been cases in controversy in 1910 but the court ignored them. I don’t know.
Again, whats your position on Brown?
---
### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 7:27pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/136 "2005-05-19T19:27:54Z")
**Bricker** I hope my last post didn’t sound as snarky to you as it did to me after I read it. It was not meant to be snarky, sorry. 🙂
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 7:39pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/137 "2005-05-19T19:39:12Z")
> [@Gadarene](#):
>
> **Bricker:**
> Do you not, then, believe that separate is inherently unequal? (You might not; it’s a reasonable position to hold.)
No. Men’s and women’s restrooms are separate. Even acknowledging the intermediate vs. strict scrutiny theoretically brought to bear on that issue, I have ni heartburn whatsoever in saying that separation does not vitiate equality.
I think the practice of analyzing EP claims is reasonably sound: a recognittion that classifications based on race are inherently suspect, and that if one exists, it must be narrowly tailored to meet a compelling government objective.
> [@](#):
>
> Why shouldn’t the Brown court have simply said, “Look, Kansas and whoever: you’re not following the law as laid out in _Plessy_. The quality of the respective educational institutions for blacks and whites in your states are not equal – in facilities, in staffing, in funding, in results. Make them equal according to these criteria. If you don’t, or can’t, we’ll revisit the issue.” Much less activist, yeah? And probably far more in line with what the framers of the Fourteenth would have seen to be just and appropriate.
That would have been all right with me – except that Kansas was ALREADY on notice that they had to provide equality, and were well aware that they were not. It’s unclear why they needed to be given one more chance to do that which they had had many chances to do already.
But the Court could have so ruled, and that would have been a constitutional result.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 7:54pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/138 "2005-05-19T19:54:48Z")
> [@](#):
>
> But the Court could have so ruled, and that would have been a constitutional result.
Would it have been a better result, jurisprudentially speaking?
Also:
> [@](#):
>
> The Plessey court had no basis on the record to conclude that their method would not work. The Brown court did.
On what basis did the Brown court conclude that the method would/did not work? That states were not complying with the “equal” portion of the rubric? That should have been evident to the Plessy court. Are you talking about the sociological studies?
And I’d still love to get your take on the questions I asked in Post #127, _supra_. 🙂
---
### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 8:11pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/139 "2005-05-19T20:11:32Z")
> [@Bricker](#):
>
> Do you seriously contend that the inference from “common defense” that allows Congress to authorize an Air Force and the inference from “due process” that allows the federal constitution to forbid regulation of abortion in the first 3 months of pregnancy are of equal weight?
>
> “The first three months of pregnancy” is unbelievably specific. “Due process” is unbelievably general. To get from one to the other suggests the lack of a repeatable, definable, principled process.
That is not what they said however, the court ruled that the States must leave the decision to abort up to the doctors and mother for \* approximately \* the first trimester. That in fact is not specific at all let alone unbelievably specific. This also was not a time that they just pulled out of thin air as I am sure you are well aware of.
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [May 19, 2005, 8:12pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/140 "2005-05-19T20:12:48Z")
> [@Gadarene](#):
>
> What do you mean? Schools in the District of Columbia (which was wholly under the purview of Congress) were segregated prior to the passage of the Civil War Amendments, during the passage of the Civil War Amendments, and after the passage of the Civil War Amendments. The quality of education received at the black and white schools in D.C. in the late 1860s was absolutely _not_ equal. So Congress allowed blacks and whites to be treated unequally under its own watch. Even the Radical Republicans (who didn’t make up a majority of the reconstituted Congress) weren’t, en masse, in favor of integrating public education (and there’s scant evidence that any of them were integrationist to the extent of saying, like the _Brown_ Court, that separate could never be equal). Why would integrated schools, then, be in line with their intent?
>
> (There’s an argument that the privileges and immunities clause of the 14th Amendment was intended to be a broader expression of civil rights, but that, alas, was eviscerated by the contemporaneous Supreme Court.)
The 14th amendment, as we are discussing it here, applies to the states. DC is not a state. FYI, there was a separate case, [Bolling v Sharp](http://en.wikipedia.org/wiki/Bolling_v._Sharpe), dealing with DC.
[Previous page](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418.md?page=6)
[Next page](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418.md?page=8)