>
>well, there is a bit of a temporal gap between the
>majorities you cite,
?? Lost me there.
and given the disenfranchisement
>of so many Americans the majority was even bigger for
>the 14th Amendment (as you would no doubt agree). I
>do get your point.
>
Good.
>However, even with that said, the Court is an
>undemocratic institution founded on an
>extra-constitutional premise expounded by the Court
>itself.
You are objecting to judicial review, a rather small part of the business of the courts. I have written around 150 cases for the appeals and district courts. Setting aside the section 1983 cases and the habeas cases which challenge the costitutionality of govt actions, e.g., police beatings or acts of discrimination, but not the constitutionality of legislation, maybe 15 of them have involved constitutional questions. Exactly one has challenged constitutionality of a piece of legfislation--a first amendment attack on a local ordinance. It was entirely justified, and the opinion struck down the ordinance. You're on WEstlaw, you can look it up: Weigand v. Tinley Park (N.D. Ill. 2000), it's short and fun. Most of the business reven of the Supreme Court is statutory interpretation, not judicial review.
Nowhere in the Constitution is it indicated
>which of the three branches decides the
>consitutionality of the acts of government. That
>exists only in Marbury.
Not at all. It now exists as an unchallenged part of the constitutional order, cemented by a lot of precedent. Marshall was right that it was probably contemplated by the framers. Anyway, precedent is law too in a common law country like ours.
I deny that judicial review is undemocratic. It is so only if you define democracy as sinmple majority rule. I don't. Taht is one way of realizing democracy, not the only one. Insofar as judicial rebview is directed to maintaining the conditions of democracy, preventing disenfranchisement or oppression of minorities, or maintaining the freedom of speech or association, it is democratic. Read Ely, Democracy and Distrust, not the last word, but a good book.
>
>As for civil rights, there is a sense in which I agree
>with nathan -- the forces on the ground certainly made
>change possible.
So do I. Though it was both: Brown inspired the activism on the ground.
The idea of meaningful civil rights
>was percolating through the country when the Court
>decided Brown. However, Brown gave civil rights the
>legitimacy of law, which matters to the mushy middle.
And matters to making it effective!
jks
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