Professor Bradley, I think your last post nicely illuminates our disagreement, but I’m having trouble seeing the grounds for the asymmetry that you posit. Section Five only grants Congress power to enforce the provisions of the Fourteenth Amendment, and nothing more. The courts base their rulings on the same provisions of the same Amendment, and you admit that the courts have some legitimate authority to enforce the Equal Protection Clause. So if Congress can legitimately interpret the Amendment as forbidding school segregation, why can’t the Supreme Court do the same? It seems to me that this interpretation is either legitimate, or it is not, and the answer to this question binds Congress and the courts in equal measure.

You seem to suggest that Congress is better positioned than the Judiciary to ascertain the meaning of the Fourteenth Amendment, but I don’t see why this is so. In fact, if anything, judges are by their training better suited to interpret and analyze legal texts. There might be prudential reasons to prefer that Congress interpret vague constitutional provisions instead of the courts — i.e., Congress is more accountable to the people and thus more democratically legitimate. But these reasons are prudential and not clearly constitutional. Indeed, arguably one of the most important roles of an independent judiciary is to apply constitutional limitations free from popular impulses, even when (especially when) these limitations operate in a counter-majoritarian way. After all, we wouldn’t need constitutional constraints if we simply left every question up to majority rule.