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

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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.

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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: 9780195106626
  • Publisher: Oxford University Press, USA
  • Publication date: 4/28/1996
  • Edition description: REPRINT
  • Edition number: 1
  • Pages: 208
  • Sales rank: 1,284,189
  • Product dimensions: 6.19 (w) x 9.19 (h) x 0.56 (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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