Bench Memos

More on EPC and the Courts

Anthony supplies some needed balance and context to the remarks I posted yesterday. I surely agree with him that, from my remarks, it does not follow that EPC claims were meant to be non-justiciable, or that courts lacked all power to enforce section one. I did not mean to be heard to suggest otherwise.

Anthony disagrees (or at least, questions) one thing which does follow from what I said yesterday. I think that Anthony’s use of Marbury means that he holds the following position: the judicially ascertainable meaning of section one — such that a court would be acting rightly as an Article Three body in striking down a state law on Equal Protection grounds — is co-extensive with Congress’s section five enforcement power.  I reject this position. The example I used yesterday will do today as well: I think that Congress had the constitutional power (under section 5) to legislate that public schools in the states be de-segregated.  I am not sure that — as far as those who ratified the Fourteenth Amendment understood it — courts had the authority under section one to desegregate those schools. It seems to me that Anthony rejects this asymmetry (just to give the phenomenon a name).