Apparently so. My guess is that sooner or later Bricker himself is going to show up there, too.
Of course there are external criteria by which we construct a statute’s meaning.
“I put the boat out on the bay.”
“I put the saddle on the bay.”
“I held the intruder at bay.”
What does “bay” mean?
I don’t argue that the words of a statute have to be read myopically. Words have meaning in the context in which they’re 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 “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.
Seriously - honestly. Tell me that the notion that “due process” 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 you’ve raised in this thread.
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?
Bricker see post #100, its not due process its privacy.
It was a lot sooner than I thought:
Apparently nothing means anything.
Bricker:
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.
From which of my statements would you infer that this is my contention?
I won’t begin to tell you that, whether or not I think it’s true. Pace Justice Thomas at his confirmation hearing, I don’t know enough about Roe to say what level of specificity is required. Pace Miguel Estrada, I wasn’t there for the arguments; I didn’t read the briefs; I haven’t 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 it’s “wrong.” 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.
Bricker asked you a question, ElvisL1ves.
Now, I’m no lawyer, but I’ve 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.
Which clause of the Fourteenth Amendment gives rise to the concept of personal liberty and restrictions upon state action?
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.
I did so. You just didn’t like my answer.
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?
For those of you who don’t know what the heck I’m talking about here, by the way, let me provide the background.
The Eleventh Amendment reads as follows:
Let’s break that down.
-
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity…” We’re 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.
-
“…commenced or prosecuted against one of the United States…” So we’re talking about people who aren’t allowed to bring suit against states in federal court.
-
“…by Citizens of another State, or by Citizens or Subjects of any Foreign State.” So here are the people that can’t sue states in federal court, per the Eleventh Amendment: citizens of another state, and citizens or subjects of foreign countries. That’s it.
…And 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 don’t necessarily think that’s a bad result. But I don’t think it’s 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 “The 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,” if that’s what it meant. But it didn’t. 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?
You answered only the half of it that you wanted to answer.
Once again, what’s the difference between “not that much of a stretch” (good) and “penumbra” (bad)? Or are you part of the “nothing means anything” crowd too, with the disadvantage of pretending you aren’t?
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.
42
Hey I bet if we mention Lawrence v. Texas a lot more people will jump into this discussion.
That’s not nearly as sexy as a heated discussion on the textual limits of state sovereign immunity.
Mr. Moto Since Bricker is taking a break would you consider giving us your thoughts on Brown v. Board of Ed.?
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.
I’ll give you mine even though you didn’t ask. 
Brown is well founded in the 14th amendment, which was enacted to ensure that the government did not discriminate on racial grounds. “Separate but equal” 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 unequal. 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 “abridged the priviledges” they recieved from the state.
And note that the decision didn’t declare education to be a right, per se (emphasis added):