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.
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.
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.
Where in the Constitution does it say that states are sovereign entities?
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?
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?
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.)
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.
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.
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.
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.
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.
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.
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.
Would it have been a better result, jurisprudentially speaking?
Also:
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.
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.
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, dealing with DC.
