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

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Oxford University Press, Nov 3, 1994 - Law - 208 pages
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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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Contents

The Court as Cultural Barometer
3
The Thomas Hearings and National Character
9
Elitism and Democracy in the Bork Hearings
27
Public Protest and the Court
45
Interpretation as the Suppression of Disagreement
61
Interpretation as Moral Evasion
81
Interpretation as Mind Control
103
Interpretation as Invective
123
9 Censoring Ourselves
141
Notes
157
Index
182
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About the author (1994)

Robert F. Nagel is 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 the National Review.

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