Hm?
I am under the impression that when it says No State shall it is referring to the states not the Federal Government.
I have commented on Brown v. Board in posts 137, 133, and 122 in this thread. It’s unclear to me what you’re asking that wasn’t addressed by my commentary in those posts.
Havn’t read the bio yet thanks for reminding me.
Where did you lay out your view on brown?
Until Reynolds v. Sims was decided, I’m not aware of any precedent that said a state’s legislature couldn’t be apportioned like the US Senate is: not directly mapped to population. But it turns out the Equal Protection clause forbids that for states; any scheme that dilutes the effectiveness of some citizens’ votes can run afoul of EP.
Why can’t that same reasoning be applied here?
I asked for a clear, specific statement of the doctrine that would forbid the Supreme Court’s involvement. You have answered that there is no precedent.
But every time the Court has found a new Due Process or EP right, it has created new precedent. That doesn’t seem to be a barrier.
Brown had a record to rely on to show that the scheme adopted in Plessy did not, as a matter of law, work.
No word yet from ElvisL1ves.
Random and treis have offered answers to my second question. The offered answers were: no precedent, and no section of the Constitution permits it. I have responded in turn to each of these, showing why I feel neither of these reasons sustain themselves when applied to other Court holdings.
So other than Sweatt v. Painter and McLaurin v. Oklahoma State Regents, what did the court base Brown on. The court did not even try to give a legal argument. It declared segregation unconstitutional by judicial fiat. They offered no textual support.
In fact, they DISTINGUISHED Sweatt v. Painter by pointing out in the case sub judice, there were factual findings from the trial court that buildings, curricula, qualifications and salaries of teachers were equal. Sweatt v. Painter used the Plessey holding and simply pointed out that the facilities were not equal. Brown said that based on the state of public education in the country, even if buildings, curricula, qualifications and salaries of teachers were equal, the actual segregation of students created an inequality.
They relied on McLaurin v. Oklahoma State Regents and Sweatt v. Painter for the proposition that segregation CREATED inequality:
This is not an inferential leap. It is a finding supported directly by the record before the court.
Again I don’t think there is anyway to answer besides that it can’t. In both of the cases you have cited so far as examples the Court gave a clear line of reasoning why the laws violated Due Process. In * Roe v. Wade * it found there was no basis for outlawing first-trimester abortions and in * Reynolds v. Sims * it found there was no basis for weighting one vote 30 times greater than another. There simply is not a reason why the Senate changing its debate rules falls under Due Process.
Your question is akin to asking why can’t the judiciary find the drinking age unconstitution becuase it found that corporations have the right to make political donations. The first amendment simply does not apply in that situation despite the Court finding rights in its pneumbra. Similairly the 14th amendment and the 9th amendment simply do not apply to Senate debate rules.
I think I offered more than “no precedent”. I cited the direct language that allows the Senate to set its own rules. Other than perhaps Marbury itself, can you cite a Supreme Court case that used a penumbra or similarly attenuated basis for setting aside a power so clearly delegated to one of the other two executive branches?
Urf. Ignore the word executive in that last reply.
I’ll check back in later, after I see how PLATO empire is doing.
OK. “No precedent” and, arguably, a direct contradiction in the language of the constitution, as opposed to simply no clear permissive language.
There are a raft of cases that do violence to acts of Congress, but I agree with your point above: so far as I can recall, there’s never been a case in which the Court has ignored a power clearly assigned to another branch of government - apart from Marbury.
I think this answers the OP.
In all honesty, I believe it’s a narrow zone of comfort, since it leaves all sorts of power available to the judiciary, and as a matter of wise public policy, I believe that framework is … unwise.
But this does answer the question I raised in the OP. Thank you.
Random:
C’mon. You’re telling me it’s not reasonable to believe that the Framers – who, I think we can all agree, chose their words carefully – meant “all cases in law and equity arising under this Constitution [and] the laws of the United States” when they said “all cases in law and equity arising under this Constitution [and] the laws of the United States”? When, later in the same paragraph, they make a clear statement abrogating state sovereign immunity as regards federal jurisdiction in another manner? Seems like plain meaning if ever there was.
(And, again, I agree that the states have generalized sovereign immunity…but to the extent you have to reach outside of the constitutional language for inferences in support of the proposition, and to the extent that the plain language, if anything, contradicts the proposition, it demonstrates the shaky foundation of textualism as a unitary method of jurisprudence.)
Another question, for Bricker and Random: The courts have interpreted Section 5 of the 14th Amendment to abrogate state sovereign immunity from citizen suit in certain circumstances. Do you agree with this?
Me:
Bricker:
Um…do you realize that Seminole Tribe overturned Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), to revert to the (incorrect, to you) holding in Hans? Are you saying that Scalia joined Seminole Tribe in contravention of his textualist jurisprudence, for the sake of restoring respect to historical precedent?
You may have heard of real life, haven’t you?
If you can explain how the answer you seek would truly enlighten this thread, you might get one. But I don’t coddle those who throw tantrums rather than support their own positions. If you can’t make your case yourself, and so far you haven’t, you need to reconsider if there even is one. Here’s what you have, though:
What a resoundingly eloquent statement of ultimate principle that is. Do tell us more about your hatred of flexibility of interpretation. Or, better yet, don’t bother, unless you’re enjoying the laughter.
Bricker:
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Why was the 15th amendment necessary-- ie, why didn’t the 14th cover the right to vote?
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If Congress were to consider an amendment to explicitly grant the SCOTUS the power the court gave itself in Marbury, can you recommend some wording that would put boundaries on that power in a way you would find acceptable?
Actually, to my shame… no, I didn’t read Seminole Tribe when it was first mentioned here, and I didn’t recall it on my own at all – it being a bit outside my usual area of interest.
Let me now do what I should have done, read the cases, and I’ll get back to you.
Actually, I think I agreed a few posts above that there IS an answer to the question I posed in the OP, in acknowledging that on this thread’s precise issue, I have no case.
Why is it that I’m able to simply admit when I advance an incorrect proposition, and you seemingly never are?
I can point to many instances here on the SDMD in which I’ve acknowledged error.
Have you EVER been wrong and admitted it on the SDMB? Where?
I ask because when you get pinned to an error, you dodge – as above – rather than admitting your error. I’m curious is you’ve ever done it differently.
Fair enough. Thanks!
Provide an example and we can discuss it.
But you’ve done well to finally, at long last, acknowledge you have no argument.