Bench Memos

Re: The Excellent Ramesh

I’m sure Ramesh can take care of himself, but I will weigh in long enough to say that unlike Roger Clegg, I found his New York Times op-ed this morning to be the very opposite of “ill-timed and ill-argued.”  Roger and Ramesh are actually in agreement about the illegality of affirmative action under the Civil Rights Act of 1964, as Jonah remembered Ramesh pointing out in NR several years ago.  Perhaps it is regrettable that he didn’t have the space to point that out in the Times today.  But on the constitutional question, Ramesh is right to raise doubts about whether, on an originalist reading, the Fourteenth Amendment “mandated a policy of strict colorblindness by state and local governments.”  And Roger doesn’t really argue that it does mandate that, other than to ask “where in the Constitution’s text it says that white people have different constitutional rights than black people.”  But the whole historical question is, just what sort of rights are we talking about when we say people are entitled to the “equal protection of the laws”?

On The Corner, Anthony Dick joins Roger in responding to Ramesh’s argument about congressional power under Section 2 of the Fifteenth Amendment.  What these two critics of Ramesh have in common is their certainty that the adjective “appropriate” in that section (“The Congress shall have power to enforce this article by appropriate legislation”) gives a final authority to the Supreme Court to gainsay the legislation Congress sees fit to enact under the authority given there.  Like Ramesh, I have a lot of doubt that such a judicial power to override congressional judgment was contemplated by the framers of the Fifteenth Amendment.

Anthony reminds us that “[i]f the Constitution does not authorize the federal government to take a certain type of action, the federal government has no power to do so.”  This is absolutely true.  But it does not necessarily follow from “the federal government has no power to do X” that “the judiciary has the power to declare X unconstitutional.”  For it is no less true of the judiciary than of any other branch that it has only that authority that the Constitution gives it.  And it is not at all plain, from the text of the Constitution, the history of its framing, or the general understanding of judicial power at the time of its adoption, that it gave or was intended to give the federal judiciary the authority to “enforce” every jot and tittle of itself.  Indeed, for a significant part of our history, there was a distinct pattern in the Supreme Court’s jurisprudence of its denying that any such general enforcement authority was given to it by the Constitution.

A lot of originalists–present company excepted, of course–take far too little interest in rediscovering the original understanding of judicial authority.  It was good of Ramesh to remind us to think about that.