Judicial Power and American Character: Censoring Ourselves in an Anxious Age / Edition 1

by Robert F. Nagel

Overview

This original work is an unusual effort to relate modern constitutional politics to the moral character of American culture. Writing in non-technical language, Nagel demonstrates how judicial decisions embody wider social tendencies toward moral evasiveness, privatization, and opportunism. He shows that constitutional interpretation is often used to stifle political disagreement and, ultimately, to censor our own beliefs and traditions.

The discussion ranges over such controversial topics as political correctness on the campus and in the case law, resistance to constitutional rights like abortion, the confirmation hearings of Clarence Thomas and Robert Bork, and judicial decisions on such issues as pornography, flag-burning, gay rights, school prayer, and school desegregation. The analysis crosses conventional political and philosophical lines. Nagel sees fundamental similarities between liberal theorists like Ronald Dworkin and conservatives like Bork. He traces judicial arrogance to the ambitious doctrinalist, William Brennan, but also to the cautious incrementalist, John Marshall Harlan. He describes the highest rituals of legality as re-enactments of the same cultural deficiencies that cause concern for the rule of law, and he suggests that real protection for legal values lies in self-confident politics.

Clearly written and forcefully argued, Judicial Power and American Character is an audacious examination of judicial power as an integral part of an increasingly anxious and intolerant culture. It will be of great importance to law professors, lawyers and judges, political scientists, and educated citizens interested in constitutional interpretation, the phenomenon of "political correctness", and the possibility of moral decline.

Product Details

ISBN-13:	9780195106626
Publisher:	Oxford University Press
Publication date:	04/11/1996
Edition description:	REPRINT
Pages:	208
Product dimensions:	6.19(w) x 9.19(h) x 0.57(d)
Lexile:	1480L (what's this?)

About the Author

Robert F. Nagel is the Ira Rothgerber, Jr., Professor of Constitutional Law at the University of Colorado and author of Constitutional Cultures: The Mentality and Consequence of Judicial Review (1989). He has written for the New Republic, Washington Monthly, Public Interest, Wall Street Journal, and National Review.

Table of Contents

1.	Introduction: The Court as Cultural Barometer	3
2.	Watching Ourselves: The Thomas Hearings and National Character	9
	Inequality as Equality	10
	Offensiveness as Virtue	14
	Careerism and Sexual Equality	16
	Careerism and Responsibility	20
	Moralism and Opportunism	24
3.	Shaping Law: Elitism and Democracy in the Bork Hearings	27
	Bork against the Mainstream	28
	Bork as the Mainstream	31
	Meeting the Enemy	39
4.	Marching on Constitution Avenue: Public Protest and the Court	45
	Judges as Politicians	47
	Marching and Advocacy	51
	Legalism, Realism, and Edwin Meese's Heresy	56
5.	Speaking before All Others: Interpretation as the Suppression of Disagreement	61
	The Rule of Law	64
	Legal Traditions and Constitutional Rights	66
	Political Resistance and the Expansion of Rights	71
6.	Pursuing Visions: Interpretation as Moral Evasion	81
	Sexual Speech and Moral Climate	83
	Flag Burning and Political Ethos	91
	Boundlessness and Adjudication	96
7.	Correcting the Political: Interpretation as Mind Control	103
	Regulating Sexist Speech	104
	The Court and Consciousness Raising	109
	Mind Control and Censorship	119
8.	Arguing with Enemies: Interpretation as Invective	123
	Name-Calling in the Courts	124
	Judicial Restraint and Moral Heroism	129
	The Ideal of Moderation in a Divided Society	132
	Restraint and the Judicial Machine	136
9.	Censoring Ourselves	141
	Principle Ascendant	144
	Principle, "Progress," and the Tradition of the Family	147
	Principle as Suppression	151
	Principle and Cultural Decline	155
	Notes	157
	Index	182

Editorial Reviews

"Professor Nagel's provocative book questions why an essentially undemocratic body like the Supreme Court should get the last word on the troubling moral issues of our day...."—Commonweal

From the Publisher