Quote:
|
Originally Posted by dksuddeth
You do realize what kind of power that belief places in the judiciary, right? What you're saying is that the judiciary has the unmitigated authority to rewrite the constitution based on whatever decisions come down the pipe.
|
On one hand it does place insane power in the hands of SCOTUS, but on the other that power is very limited. It's a ton of power because, presumptively, the Constitution gives the Justices ultimate authority to interpret the Constitution. I say presumptively because there are some very strong and sophisticated arguments contending that judicial review is
not within the scope of the Court's power, but that is a discussion in and of itself. What is important to realize is that SCOTUS's power is extremely limited in its own right. The Court is bound by stare decisis and cannot just take a drastic turn of course through intellectual gymnastics, they have to back it up through precedent. Additionally, the Justices can be impeached in the legislature and can only be appointed by the executive. Perhaps most importantly is the traditional proposition that the Court has no army. It has no means of actually enforcing its pronouncements if the citizenry refuses to follow them (or at least other divisions of government refuse to enforce the pronouncement on the citizenry). Thus, the Court's "power" rests on the extremely precarious public notion of its legitimacy. This has, empirically, stayed the Court's hand on many occasions.
So, in answer to the earlier query, while, yes, the Court could theoretically rule that the 14th & 15th Amendments do not pertain to African Americans that would technically be
the law. However, in reality this would never happen because there is absolutely no basis in precedent for such an action, it would certainly lead to impeachment, and, again most importantly, it would destroy the Court's legitimacy which is the only source of its power.
I also want to add that the structuralist approach to constitutional theory is no more legitimate than any other approach, even the extremely flighty moral approach taken by a few modern scholars. The fact is that the Constitution says the Court will exist and that it has original jurisdiction under some circumstance, but it no where states how the Court should interpret the Constitution when it has to. It's really quite ironic that the structuralist view hinges entirely on strictly interpreting the language of the Constitution as, presumably, intended as written, yet that very language cannot justify that stance over any other theory.