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

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In this highly original book, Robert Nagel demonstrates how contemporary constitutional politics reflect the moral character of American culture. He persuasively argues that judicial decisions embody wider social tendenceies towards moral evasiveness, privatization, and opportunism. Constitutional interpretation, he urges, is often an effort to stifle political disagreement and, ultimately, to censor our own beliefs and traditions. Nagel ranges over such controversial topics as the confirmation hearings of Clarence Thomas and Robert Bork, local resistance to abortion rights, political correctness on campus, and judicial decisions dealing with pornography, flag burning, gay rights, school prayer, and racial desegregation. Crossing conventional political and philosophical lines, the analysis is surprising and provocative. Nagel sees fundamental similarities between liberals like Ronald Dworkin and conservatives like Bork. He finds judicial arrogance in jurists as different as William Brennan and Sandra O'Connor. Clearly written and forcefully argued, this work is an audacious examination of judicial power as an integral part of our increasingly anxious and intolerant society.

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Editorial Reviews

From the Publisher
"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
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Product Details

  • ISBN-13: 9780195089011
  • Publisher: Oxford University Press, USA
  • Publication date: 11/28/1994
  • Edition number: 1
  • Pages: 208
  • Lexile: 1480L (what's this?)
  • Product dimensions: 6.32 (w) x 9.52 (h) x 0.74 (d)

Meet 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.

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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
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