# 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:** 8
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 8:20pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/141 "2005-05-19T20:20:15Z")
> [@](#):
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> The 14th amendment, as we are discussing it here, applies to the states. DC is not a state.
I’m aware of both those things. Thanks. 🙂
The argument is as follows:
1. It was not the intention of the Congressional Framers of the Fourteenth Amendment (“the Framers”), in passing the amendment, to make segregation unconstitutional.
2. We know this because the Framers had the power to make segregation illegal in the District of Columbia, and they did not, either before or after the passage of the amendment.
3. One presumes that the Framers would not intend to compel a result upon the states that they abjured for the jurisdiction under their own control.
4. Therefore, the result in Brown (segregation is unconstitutional) cannot be justified on textualist or originalist grounds.
You can challenge each of those assumptions, of course, but that’s what the argument is. It has nothing directly to do with _Bolling v. Sharpe_.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 8:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/142 "2005-05-19T20:29:57Z")
> [@Gadarene](#):
>
> 1. Where in the Constitution does it say that states are sovereign entities?
It doesn’t. But the states STARTED as sovereign entities; the Constitution did not come into being upon a _tabula rasa_. The Constitution lays out what powers the federal government has; it does not purport to list the powers of the states.
> [@](#):
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> 1. 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?
Actually, that does give jurisdiction to federal courts in suits between a state and citizens of another state. It does not abrogate the states’ sovereign immunity.
> [@](#):
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> 1. 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?
No.
And to the extent _Hans_ stands for the contrary position, it was wrongly decided.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 19, 2005, 8:34pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/143 "2005-05-19T20:34:28Z")
I believe I have been pretty good about answering questions directed my way.
In return, I would like:
1. **ElvisL1ves** to answer my question about what authorities he was relying on for the proposition that textualism or originalism meant literalism.
2. Any and everyone to answer the question that started this all: what principle, or doctrine, or method of analysis prevents the Supreme Court from stepping in to the Senate filibuster fight and finding, for example, that minority senators have a due process right to filibuster? Please clearly and specifically enunciate the principle or method you feel prevents this.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 8:46pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/144 "2005-05-19T20:46:19Z")
\*\* Bricker \*\* perhaps you can give us an argument why Due Process applies to Senate rulings? You seem to be the only one that in any way has claimed Due Process might apply to this situation. I do believe that this is merely an extension of the debate on your example of Roe vs Wade. You have replied to some people but you did miss my reply on the trimester issue.
To humor you though,
The 14th amendment does not apply becuase that restricts State action.
The 5th doesn’t apply becuase no one has been deprived of life, liberty or property. The 9th and 10th do not apply becuase the constitution specifically grants the power to the Senate to make its debate rules.
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### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 8:49pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/145 "2005-05-19T20:49:28Z")
> [@Bricker](#):
>
> I believe I have been pretty good about answering questions directed my way.
:rolleyes:
1. How about you answer his claim (Post 124) that there is no difference in how you refer to the ad hoc inferential leaps of others, but claim to make none yourself.
2. I don’t have an opinion on this issue, I am just here because I see you ducking issues, and I want to see which way you duck this one, so I can learn how to combat Hand-waved away questions better in the future.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 8:51pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/146 "2005-05-19T20:51:05Z")
**Bricker:**
> [@](#):
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> It doesn’t. But the states STARTED as sovereign entities; the Constitution did not come into being upon a tabula rasa. The Constitution lays out what powers the federal government has; it does not purport to list the powers of the states.
But it does lay out the powers of the federal governent over the states, if only by implication – the Commerce Clause’s dormant counterpart, for example.
> [@](#):
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> Actually, that does give jurisdiction to federal courts in suits between a state and citizens of another state. It does not abrogate the states’ sovereign immunity.
Why not, necessarily? More to the point, why didn’t the Framers set forth the states’ sovereign immunity in the document? It’s fine to assume that the federal government can only do to the states what the Constitution says it can do to the states, but isn’t it equally reasonable to believe that where the Constitution explicitly granted the federal government power vis a vis the states, such power is plenary? Why are we supposed to _know_ that states can’t be sued without their consent, when the Constitution clearly puts no condition on federal jurisdiction over suits between citizens and states?
To the extent that the answer is, “States have always had sovereign immunity,” then textualism by itself is not a sufficient tool when interpreting the Constitution in that regard. There requires a set of assumptions (dare I call them ad hoc?) to make the inferential leap from “states had sovereign immunity before the Constitution” to “states still have sovereign immunity because the Constitution doesn’t say otherwise, even though it _does_ grant the federal government certain powers over the states and mandates that federal law is the supreme law of the land.” Those assumptions may be shared (I, for example, agree that states retain sovereign immunity, although I don’t think that, by itself, it goes so far as to render them safe from suit in federal court, given Article III), but they’re still assumptions.
“We only know what we’re told, and for all we know that isn’t even true.”
“For all anyone knows, nothing is. Truth is only that which is taken to be true. It’s the currency of living. There may be nothing behind it, but it doesn’t matter so long as it is honored. One acts on assumptions.” --Rosencrantz & Guildenstern are Dead
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 8:52pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/147 "2005-05-19T20:52:49Z")
> [@](#):
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> No.
>
> And to the extent Hans stands for the contrary position, it was wrongly decided.
I forgot: thanks for the reply here. You know that Scalia joined the majority opinion in _Seminole Tribe_, right? 😉
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 8:56pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/148 "2005-05-19T20:56:01Z")
Bricker, what am I chopped liver? You don’t deem me worthy of a responce? You don’t have an answer?
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 19, 2005, 9:11pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/149 "2005-05-19T21:11:23Z")
I agree with **Bricker** , but one of his points may not have been 100% clear without some more context:
It is important to understand that there are two main ways a case gets into Federal courts, which are courts of limited jurisdiction. The first is a federal question - a case or claim that arises under the U.S. Constitution or a Federal statute. The second is diversity jurisdiction - a case brought by a plaintiff against the citizen of another state.
The basis for diversity jurisdiction is Article III, Section 2 of the Constitution:
> [@](#):
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> 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;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– **between a State and Citizens of another State** ; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Note bolded text.
Now comes _Chisholm v. Georga_, which allowed a diversity suit of a South Carolina resident against the state of Georgia.
General outrage follows, and the 11th Amendment is adopted to overturn _Chisholm_, thus restoring the sovereign immunity (partially) taken away by Article III.
The point is that no one at the time found it necessary to state in the 11th Amendment that sovereign immunity precluded claims by the resident of a state against that state. The bolded language of Article III didn’t affect those types of cases, and as the 11th amendment was designed to remove that part of Article III, that’s all it addressed.
From **Seminole Tribe** :
> [@](#):
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> Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.” Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U.S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that " `\*t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.’ " Id., at 13 (emphasis deleted), quoting The Federalist No. 81, p.487 (C. Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico Aqueduct and Sewer Authority, supra, at 146 (“The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity”). For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Hans, supra, at 15.
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 19, 2005, 9:14pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/150 "2005-05-19T21:14:01Z")
I apologize: my last post referred to post 121, and obviously the discussion has moved on, and point I tried to make has already been made.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 9:18pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/151 "2005-05-19T21:18:16Z")
**Random:**
…And _Seminole Tribe_, with _Hans_, holds that a citizen of a state cannot sue that state over a federal question in federal court without that state’s consent, right? So, yeah, the Eleventh Amendment dealt only with diversity jurisdiction – and yet _Hans_ and _Seminole Tribe_ ground their holding that federal question jurisdiction must bow to state sovereign immunity in the Eleventh Amendment. An odd argument to make if one is a textualist like Scalia, to be sure.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 9:24pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/152 "2005-05-19T21:24:03Z")
Quick question here. Does the article in question of the consititution merely give Federal Courts jurisdiction in these cases or does it limit jurisdiction in these matters to Federal Courts? In other words could Georgia say sure you can sue me but only in the State of Georgia’s court system or would that case have to be tried in Federal Court?
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [May 19, 2005, 9:27pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/153 "2005-05-19T21:27:48Z")
> [@Gadarene](#):
>
> 1. One presumes that the Framers would not intend to compel a result upon the states that they abjured for the jurisdiction under their own control.
Why would one assume that? The fact that they didn’t write “no state nor the District of Columbia…” implies they considered the states to be entities with different duties and/or requirements than those of the District of Columbia. Congress also has a history of specifically exempting itself from the laws it imposes on the rest of the country.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 9:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/154 "2005-05-19T21:29:49Z")
**Bricker** and **Random** , feel free to jump in if this response is incorrect or incomplete.
> [@](#):
>
> Does the article in question of the consititution merely give Federal Courts jurisdiction in these cases or does it limit jurisdiction in these matters to Federal Courts?
The former.
> [@](#):
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> In other words could Georgia say sure you can sue me but only in the State of Georgia’s court system or would that case have to be tried in Federal Court?
As it stands now, yes, Georgia can say that. (There are certain situations in which Congress can override state sovereign immunity and subject the state to suit without it’s consent.) Article III does not explicitly provide for that, no.
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 19, 2005, 9:32pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/155 "2005-05-19T21:32:15Z")
> [@Gadarene](#):
>
> **Random:**
>
> …And _Seminole Tribe_, with _Hans_, holds that a citizen of a state cannot sue that state over a federal question in federal court without that state’s consent, right? So, yeah, the Eleventh Amendment dealt only with diversity jurisdiction – and yet _Hans_ and _Seminole Tribe_ ground their holding that federal question jurisdiction must bow to state sovereign immunity in the Eleventh Amendment.
No, not exactly. From that case (and I did quote this before): “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.”
States **are** sovereign, unless that sovereignty is limited by a Constitutional provision. They were prior to the adoption of the Constitution and they are today. No one argues otherwise.
Article III took a bit of that sovereignty away. (at least arguably - certainly the _Chisholm_ court agreed.) The 11th amendment restored that bit that was taken away by Article III. And as that bit had nothing to do with suits against a state by citizens of that state, there was no need for the 11th amendment to discuss those kinds of suits.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 9:33pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/156 "2005-05-19T21:33:02Z")
> [@](#):
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> The fact that they didn’t write “no state nor the District of Columbia…” implies they considered the states to be entities with different duties and/or requirements than those of the District of Columbia.
…And the fact that they didn’t write “no state may segregate on the basis of race” means that you have to look deeper, or elsewhere, in order to read _segregation is unconstitutional_ from the words ‘equal protection,’ ‘due process,’ or ‘privileges and immunities.’ Some people have pointed out that because the Framers themselves didn’t seem overly fond of integration, there’s no reason to assume that they intended mandatory integration to be one of the results of the Fourteenth Amendment. I’m not sure I’m understanding your argument.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 9:34pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/157 "2005-05-19T21:34:56Z")
One more thing can someone link to Chisholm v. Georga I can’t seem to find it.
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### Author:  [@elucidator](https://boards.straightdope.com/u/elucidator)
#### Post date: [May 19, 2005, 9:35pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/158 "2005-05-19T21:35:24Z")
One thing amply demonstrated by this discussion: whatever the desireable term, the “originalist” school of thought has no monopoly on legitimacy, there are good and valid reasons to be so persuaded, but there good and valid reasons to be persuaded otherwise.
Now, I don’t know a tort from a titty, but seems to me if you’ve got a substantial number of persons educated in a discipline and therein respected, and they hold a substantially different opinion than others, you have two “schools of thought”. A discussion on thier relative validity is therefore a matter of opinion, not proveable.
If only those who hold one point of view are to be deemed legitimate, this starts a very ugly ball rolling. Lysenkoism is a prominent example.
Are all the nominee’s of the Bush Admin of the conservative persuasion? I think we can take that as a given, their generosity in bipartisanship is _bupkus_. So, at best, we got a whole slew of moderately conservative judges that sailed right through without so much as a blink.
When Dems decry these few as being too far from the center, why shouldn’t we believe them? Lot of lawyers in thier midst, I’m sure. Surely we aren’t given to believe that the Dems just picked these guys at random? So, sure, the Tighty Rightys knew what they were doing, they were playing “In Yer Face, Sucka!” from the git go. They had no intention but riling up the shit when the re-nominated those guys. What, there were no qualified moderates to be found? Without these august personsages, the Republic would falter?
Now that is stupid, nearsighted and destructive. Republicans have a history of being bad losers, and worse winners.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 9:35pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/159 "2005-05-19T21:35:57Z")
> [@](#):
>
> Article III took a bit of that sovereignty away.
Yes, it did:
> [@](#):
>
> 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;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Emphasis mine.
Isn’t the most reasonable reading of “all cases in law and equity arising under this Constitution [and] the laws of the United States” that citizens of a state could sue that state in federal court on a federal question, the state’s consent notwithstanding?
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 9:42pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/160 "2005-05-19T21:42:20Z")
> [@treis](#):
>
> One more thing can someone link to Chisholm v. Georga I can’t seem to find it.
[here you go](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=2&page=419)
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