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

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

by Robert F. Nagel
     
 

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ISBN-10: 0195106628

ISBN-13: 9780195106626

Pub. Date: 04/28/1996

Publisher: Oxford University Press, USA

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

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, USA
Publication date:
04/28/1996
Edition description:
REPRINT
Pages:
208
Product dimensions:
6.19(w) x 9.19(h) x 0.56(d)

Table of Contents

1.Introduction: The Court as Cultural Barometer3
2.Watching Ourselves: The Thomas Hearings and National Character9
Inequality as Equality10
Offensiveness as Virtue14
Careerism and Sexual Equality16
Careerism and Responsibility20
Moralism and Opportunism24
3.Shaping Law: Elitism and Democracy in the Bork Hearings27
Bork against the Mainstream28
Bork as the Mainstream31
Meeting the Enemy39
4.Marching on Constitution Avenue: Public Protest and the Court45
Judges as Politicians47
Marching and Advocacy51
Legalism, Realism, and Edwin Meese's Heresy56
5.Speaking before All Others: Interpretation as the Suppression of Disagreement61
The Rule of Law64
Legal Traditions and Constitutional Rights66
Political Resistance and the Expansion of Rights71
6.Pursuing Visions: Interpretation as Moral Evasion81
Sexual Speech and Moral Climate83
Flag Burning and Political Ethos91
Boundlessness and Adjudication96
7.Correcting the Political: Interpretation as Mind Control103
Regulating Sexist Speech104
The Court and Consciousness Raising109
Mind Control and Censorship119
8.Arguing with Enemies: Interpretation as Invective123
Name-Calling in the Courts124
Judicial Restraint and Moral Heroism129
The Ideal of Moderation in a Divided Society132
Restraint and the Judicial Machine136
9.Censoring Ourselves141
Principle Ascendant144
Principle, "Progress," and the Tradition of the Family147
Principle as Suppression151
Principle and Cultural Decline155
Notes157
Index182

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