# 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:** 9
### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 9:46pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/161 "2005-05-19T21:46:59Z")
> [@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?court=US&vol=2&invol=419).
> [@askeptic](#):
>
> Bricker, what am I chopped liver? You don’t deem me worthy of a response? You don’t have an answer?
Apparently so. I believe this skipping posts is a tactic of his, when he would otherwise be forced to admit his claims have holes in them, as opposed to how it seems like he is claming they are The One Right Answer!™
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 9:49pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/162 "2005-05-19T21:49:28Z")
> [@](#):
>
> I believe this skipping posts is a tactic of his, when he would otherwise be forced to admit his claims have holes in them, as opposed to how it seems like he is claming they are The One Right Answer!™
Hey now. **Bricker’s** had a fusillade of questions thrown his way, and he’s already admitted he was wrong in at least one instance in this thread today. I’m interested to see his response to **askeptic** as well, but it doesn’t mean you have to slag the guy.
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 19, 2005, 9:51pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/163 "2005-05-19T21:51:13Z")
> [@Bricker](#):
>
> …I would like … 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.
Maybe I’m missing something, but:
> [@Article I](#):
>
> Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
I am not aware of any precedent that would allow judicial review of Senate rules adopted under this clear power.
Can I conceive of some extremely unconstitutional exercise of this power that overwhelmingly frustrates another clear Constitutional right that might prompt a Supreme Court to step in? Yeah, probably. If the Senate passed a rule that said that votes of Asian American senators won’t count, thus violating Art. III, Sec. 3, Clause 1, and 3 “nay” votes were thus not counted when a new statute was adopted 49-48, I could see a Court refusing to find that statute valid.
But IMO it’d have to be THAT clear to trump the rulemaking power of the (sitting) Congress.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 19, 2005, 9:54pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/164 "2005-05-19T21:54:32Z")
> [@Random](#):
>
> Maybe I’m missing something, but:
>
> I am not aware of any precedent that would allow judicial review of Senate rules adopted under this clear power.
>
> Can I conceive of some extremely unconstitutional exercise of this power that overwhelmingly frustrates another clear Constitutional right that might prompt a Supreme Court to step in? Yeah, probably. If the Senate passed a rule that said that votes of Asian American senators won’t count, thus violating Art. III, Sec. 3, Clause 1, and 3 “nay” votes were thus not counted when a new statute was adopted 49-48, I could see a Court refusing to find that statute valid.
>
> But IMO it’d have to be THAT clear to trump the rulemaking power of the (sitting) Congress.
And so we come full circle. Same argument is on first page. It was ignored there as well.
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### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 9:58pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/165 "2005-05-19T21:58:38Z")
Well, Gadarene, do you recall [Pat Robertson claims federal judges are greater threat than al Qaeda/Nazi Germany](http://boards.straightdope.com/sdmb/showthread.php?t=314828)? Looking it over, it seems like he does just what I accuse him of. He posts answers to legalistic questions, then when people question his underlying assumptions why nothing should ever change legally, despite a changing society, and despite the intent of laws to increase freedom, he hand waves them off. It seems to be of something nasty.
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### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 10:00pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/166 "2005-05-19T22:00:38Z")
:smack: I cut and pasted the word “symptomatic” when I was spell checking. The last sentence should read “It seems to symptomatic be of something nasty.”
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 19, 2005, 10:02pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/167 "2005-05-19T22:02:08Z")
I’m not involved in any thread but this one, **Scott** ; hence, I can’t speak for what **Bricker** may or may not have done elsewhere.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 10:03pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/168 "2005-05-19T22:03:46Z")
> [@Random](#):
>
> 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.
I seem to recall someone important sayining something to the effect of these states were never free and independent. I am not trying to be snarky here, the quote sounds so familiar but I can’t remember where its from for the life of me. I am fairly certain it has to do with secession but I can’t remember who or in what context they said it. Any help here?
Thanks for the link by the way.
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### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 10:08pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/169 "2005-05-19T22:08:17Z")
> [@Gadarene](#):
>
> I’m not involved in any thread but this one, **Scott** ; hence, I can’t speak for what **Bricker** may or may not have done elsewhere.
So then, for a good example of what I am saying, I would ask that you read **askeptic** ’s post, just above the one you are responding to, 165.
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 19, 2005, 10:09pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/170 "2005-05-19T22:09:50Z")
> [@Gadarene](#):
>
> 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?
No. Words have to be read with some context in mind. It’s fairly compelling (from what occurred immediately after _Chisholm_) that this language was not meant to abrogate sovereign immunity. The Constitution was adopted and ratified in the 1787-1790 period. The _Chisholm_ opinion was handed down in 1793. General outrage immediately followed - the states never meant Article III to abrogate their immunity. The 11th amendment was quickly adopted and ratified by the necessary 3/4 of the states by 1795. The state legislators who approved the 11th amendment didn’t exactly have to pore over dusty documents to figure out the intent of those who adopted the Constitution - those state legislatures in 1795 would have included many (if not most) of the people who had voted to ratify the Constitution only a few years before.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 10:19pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/171 "2005-05-19T22:19:25Z")
I don’t know \*\* Random\*\* didn’t these same people want the country to be a collection of 13 smaller countries under a weak Federal government? I can just as easily see the problem being that a citizen of another state i.e. a foreigner suing the State he is not a citizen of. Certainly that is what the 11th amendment explicitly forbids. If the problem was a State being sued why wouldn’t they just have wrote
“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.”
If thats what they had written it would be obvious that the problem was a State was being sued. By adding the latter part of the amendment to me atleast it seems that the problem was the fact that a non-citizen was suing the State not that a State was being sued.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [May 19, 2005, 10:22pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/172 "2005-05-19T22:22:25Z")
> [@Gadarene](#):
>
> …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.
Possibly. But what you have to keep in mind is that compulsary education as we think of it today (or even in the 1950s) was virtually nonexistance in the US of the 1860s. IIRC, MA was the first state to introduce compulsary education, and that was in the 1850s. It’s quite possible that many of the framers never gave much thought to school integration. But they did give thought to the general concept of state laws and state actions. And as our educational system evolved, the “problem” of how to treat the races came to the forefront. I suspect (can’t say for sure, but it makes sense) that “separate but equal” was our first, clumsy attempt to deal with this on a national level.
By the 1950s, we had plenty of experience with complusary education and “separate but equal” to see that the two were not compatible with the 14th.
So, no, the framers didn’t have to think specifically of school integration. All they had to think about was state action and state law. Similarly, if today a state were to require expectant Black mothers (and only Black mothers) to undergo genetic testing of their unborn fetuses, that would be unconstitional even though The Framers wouldn’t have known what genetic testing is.
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### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 19, 2005, 10:34pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/173 "2005-05-19T22:34:19Z")
Bolding mine:
> [@John Mace](#):
>
> 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.
Now, IANAL, but under such a conception, would it then be impossible to sue Kentucky, Massachusetts, Pennsylvania, or Virginia? After all, there are only 46 states, the once I just mentioned being Commonwealths. Quickly scanning over the document revels no mention of this fact, not that it would make a diffrence. I just think it sonds silly, and beyond common sense.
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 19, 2005, 10:34pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/174 "2005-05-19T22:34:34Z")
> [@treis](#):
>
> I If the problem was a State being sued why wouldn’t they just have wrote
>
> “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.”
>
> If thats what they had written it would be obvious that the problem was a State was being sued. By adding the latter part of the amendment to me atleast it seems that the problem was the fact that a non-citizen was suing the State not that a State was being sued.
Can I ask you to read my post #149? The 11th amendment was meant to reverse a judicial interpretion of one particular clause. It narrowly addressed that one clause. Could the drafters of the amendment have chosen broader language? Sure. But no one at the time dreamed that broader language was necessary, as the existence of state sovereign immunity was so obvious to them.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 19, 2005, 11:45pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/175 "2005-05-19T23:45:47Z")
I’ve gone back and reread the relevent posts but I think my question still stands. By read of the 11th amendment it still seems to me the problem was that the plantiff was not a citizen of the State being sued. To me the mistake corrected was the implication that a non-citizen had the right to bring a suit against a state. If the mistake were that a State may not be sued then wouldn’t they have specifically and unequivocally said so.
This is not to say that a State does not have soverign immunity. The comment that kicked off this discussion was that soverign immunity is not explicitly written anywhere in the constitution and certainly no where in the 11th amendment. It is accurate to read the 10th amendment and conclude that the States retained the power of soverign immunity. Clearly there is a common law background for that. The problem comes when you call a similair line of reasoning “ex text” in regards to abortion.
Substantitve Due Process has basis in the common law ideal of just and fair laws. It does not seem very just or fair to prohibit citizens from obtaining a medically beneficially procedure for no reason. Of course the central issue is whether or not the fetus is a person that the State can protect. There is common law basis for this too and it says that the fetus was not protected by law until after quickening. No legal basis for a fetus being a legal person until after quickening, No person for the State to protect therefore no justification for the abortion laws. Ergo the law is neither fair nor just and is in violation of Due Process.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:10am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/176 "2005-05-20T00:10:30Z")
> [@ElvisL1ves](#):
>
> You just can’t identify the difference.
Sure I can. When the text of a statute, read in the context of its adoption and in _pari materia_ with other statutes, is given an effect that directly follows from that text, that’s not the use of ad hoc assumptions.
When it is necessaary to claim that the effect is a result of an emanation, a penumbra, or any other word indicating that reliance is being placed on substantive interpretation NOT found in the text of the document, read in the context of its adoption and in _pari materia_ with other statutes, then ad hoc assumptions have been used.
Here’s an analogy.
Let’s say we all agree it’s wrong to work for a tobacco company.
I have no problem concluding it’s wrong to work for a temp agency if you’re assigned to work for the tobacco agency - even though the temp agency pays your salary. But I reject the notion that it’s wrong to work for the printing company, even though the tobacco agency may be a client. And I reject the notion that it’s wrong to work for the law firm that represents the printing company, simply because the printing company’s client list includes the tobacco company.
That is not a definition - it is an example of what I’m calling ad hoc inferences. One jump away from the text isn’t terrible. Two, three, four jumps away from the text and you’re in unacceptable territory.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:16am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/177 "2005-05-20T00:16:17Z")
> [@Gadarene](#):
>
> I forgot: thanks for the reply here. You know that Scalia joined the majority opinion in _Seminole Tribe_, right? 😉
Sure. I would have, too, because we cannot unravel a hundred years of precedent overnight. I wouldn’t overturn _Griswold_, either… too many cases rely on it now.
But I would stop current cases from following the same logic in stretching innovations any further.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 20, 2005, 12:19am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/178 "2005-05-20T00:19:35Z")
Boy nobody wants to address Brown v. Board of Ed. Hmmmmm
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:20am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/179 "2005-05-20T00:20:41Z")
> [@askeptic](#):
>
> 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?
Thurgood Marshall’s bio made the claim – I welcome correction on the point.
I think I have laid out pretty clearly how I view Brown. Is there a specific question you have?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:24am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/180 "2005-05-20T00:24:34Z")
> [@treis](#):
>
> \*\* 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.
I picked the Due Process clause because it encompasses so many things. I am at a loss to offer a specific argument in favor of it.
> [@](#):
>
> To humor you though,
>
> The 14th amendment does not apply becuase that restricts State action.
This is state action. The Senate is a state actor, and the individual senators are affected by its action, losing their ability to filibuster.
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