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John T. Noonan, Jr.
Narrowing the Nation's Power
The Supreme Court Sides with the States
$35.95, £20.95 hardcover
978-0-520-23574-8
Available Now
$17.95, £10.95 paperback
978-0-520-24068-1
Available Now
212 pages, 5-1/2 x 8-1/4 inches,
August 2002, Available worldwide
Categories: Law; American Studies; Political Theory
August 2002, Available worldwide
Categories: Law; American Studies; Political Theory
Downloadable eBook version available:
Adobe E-Reader at ebooks.com, $12.95
Adobe E-Reader at ebooks.com, $12.95
"A stinging and even startling critique of recent decisions that have shifted the balance of power in the country away from Congress toward the states and--most damning in Noonan's view--toward the court itself. . . .[A] passionate and provocative book."—Linda Greenhouse, New York Times Book Review
"The Supreme Court's conservative justices say they practice judicial restraint and accuse their liberal colleagues of activism. But a conservative federal judge has just written a blistering book arguing that the court's conservatives are actually engaged in a huge power grab, under the banner of respect for the states, that seriously erodes the rights of ordinary Americans."—New York Times editorial, August 21, 2002
"Noonan's compressed and subtle treatment of current immunity jurisprudence should trigger further debate on this important area of the law."—Publishers Weekly
"[T]his brief book is an immensely valuable and important critique of the Rehnquist Court's constitutional agenda."—Wilson Quarterly
"The Supreme Court's conservative justices say they practice judicial restraint and accuse their liberal colleagues of activism. But a conservative federal judge has just written a blistering book arguing that the court's conservatives are actually engaged in a huge power grab, under the banner of respect for the states, that seriously erodes the rights of ordinary Americans."—New York Times editorial, August 21, 2002
"Noonan's compressed and subtle treatment of current immunity jurisprudence should trigger further debate on this important area of the law."—Publishers Weekly
"[T]his brief book is an immensely valuable and important critique of the Rehnquist Court's constitutional agenda."—Wilson Quarterly
"John T. Noonan, Jr., brings impeccable scholarly and judicial credentials to his dramatic accusation that five members of the Supreme Court are systematically thwarting justice to Americans through a states rights policy that is essentially political and without basis in the Constitution. Judge Noonan's stature as a leading conservative thinker gives added prestige to this compact, lively and riveting account."—Norman Dorsen, Stokes Professor of Law, New York University; President of the ACLU, l976-l99l
"Written by a great scholar, independent thinker, lucid writer, and superb advocate, John T. Noonan, Jr.'s Narrowing the Nation's Power provides a devastating attack on the logic of the Supreme Court's revival of states' rights, and makes complex legal doctrine enjoyable and readily understandable reading."—Jesse H. Choper, Earl Warren Professor of Public Law, University of California
"Written by a great scholar, independent thinker, lucid writer, and superb advocate, John T. Noonan, Jr.'s Narrowing the Nation's Power provides a devastating attack on the logic of the Supreme Court's revival of states' rights, and makes complex legal doctrine enjoyable and readily understandable reading."—Jesse H. Choper, Earl Warren Professor of Public Law, University of California
Narrowing the Nation's Power is the tale of how a cohesive majority of the Supreme Court has, in the last six years, cut back the power of Congress and enhanced the autonomy of the fifty states. The immunity from suit of the sovereign, Blackstone taught, is necessary to preserve the people's idea that the sovereign is "a superior being." Promoting the common law doctrine of sovereign immunity to constitutional status, the current Supreme Court has used it to shield the states from damages for age discrimination, disability discrimination, and the violation of patents, trademarks, copyrights, and fair labor standards. Not just the states themselves, but every state-sponsored entity--a state insurance scheme, a state university's research lab, the Idaho Potato Commission—has been insulated from paying damages in tort or contract. Sovereign immunity, as Noonan puts it, has metastasized. "It only hurts when you think about it," Noonan's Yalewoman remarks.
Crippled by the states' immunity, Congress has been further brought to heel by the Supreme Court's recent invention of two rules. The first rule: Congress must establish a documentary record that a national evil exists before Congress can legislate to protect life, liberty, or property under the Fourteenth Amendment. The second rule: The response of Congress to the evil must then be both "congruent" and "proportionate." The Supreme Court determines whether these standards are met, thereby making itself the master monitor of national legislation. Even legislation under the Commerce Clause has been found wanting, illustrated here by the story of Christy Brzonkala's attempt to redress multiple rapes at a state university by invoking the Violence Against Women Act. The nation's power has been remarkably narrowed.
Noonan is a passionate believer in the place of persons in the law. Rules, he claims, are a necessary framework, but they must not obscure law's task of giving justice to persons. His critique of Supreme Court doctrine is driven by this conviction.
Crippled by the states' immunity, Congress has been further brought to heel by the Supreme Court's recent invention of two rules. The first rule: Congress must establish a documentary record that a national evil exists before Congress can legislate to protect life, liberty, or property under the Fourteenth Amendment. The second rule: The response of Congress to the evil must then be both "congruent" and "proportionate." The Supreme Court determines whether these standards are met, thereby making itself the master monitor of national legislation. Even legislation under the Commerce Clause has been found wanting, illustrated here by the story of Christy Brzonkala's attempt to redress multiple rapes at a state university by invoking the Violence Against Women Act. The nation's power has been remarkably narrowed.
Noonan is a passionate believer in the place of persons in the law. Rules, he claims, are a necessary framework, but they must not obscure law's task of giving justice to persons. His critique of Supreme Court doctrine is driven by this conviction.
Acknowledgments
Prologue: A Recurrent Struggle Is Resumed
1. The Battle of Boerne
2. Superior Beings
3. Votaries
4. The Sovereign Publisher and the Last of the Menu Girls
5. Perhaps Inconsequential Problems
6. Gang Rape at State U.
7. Sovereign Remedy
Notes
Index
Prologue: A Recurrent Struggle Is Resumed
1. The Battle of Boerne
2. Superior Beings
3. Votaries
4. The Sovereign Publisher and the Last of the Menu Girls
5. Perhaps Inconsequential Problems
6. Gang Rape at State U.
7. Sovereign Remedy
Notes
Index