Judicial Power and American Character

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

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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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Product details

  • Paperback | 208 pages
  • 155.7 x 234.4 x 14mm | 328.45g
  • Oxford, United Kingdom
  • English
  • Reprint
  • 0195106628
  • 9780195106626

Back cover copy

{Judicial Power and American Character} chronicles the declines of American moral character by examining the cultural meaning of recent Supreme Court jurisprudence...{A} searching critique of contempory American culture...'
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Review quote

"A thoughtful essay on the role of the Supreme Court in our society....Highly recommended."-Choice "This is a major contribution to constitutional theory and practice, a significant work of social criticism, and a great pleasure to read. As for an originality of ideas, it is here in abundance. Professor Nagel writes from a perspective that pays enormous respect to the common understandings of society."-Lee C. Bollinger, Provost, Dartmouth College "The best analysis yet of the Court's method, and of the relation of its style to its purposes."-Chronicle "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....An erudite argument."-Commonweal "Thought-provoking and well-written....For those interested in the ongoing debate over the role of judicial power in our system of government, this is a valuable book."-American Political Science Review
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About Robert F. Nagel

About the Author:
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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