Nationalized political discourse

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 2057-2071

  Nagel, Robert F ^a  

^a NONE

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[No Author keywords available]

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EID: 0035628801     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (51)

1. Bruce Ackerman, We the People: Foundations 6-7 (1991).
2. Id. at 48-50.
3. Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment 219 (1994).
4. See id. at 31.
5. Mark Tushnet, Taking the Constitution Away from the Courts (1999).
6. For a useful survey and analysis of such proposals, see Paul D. Carrington, Restoring Vitality to State and Local Politics by Correcting the Excessive Independence of the Supreme Court, 50 Ala. L. Rev. 397, 453-62 (1999). Carrington's own proposals also focus on national institutions: term limits for the justices and a "devolutionary amendment" authorizing a congressional super-majority to override judicial opinions that excessively intrude on state and local governments. Id.
7. For writings that do not ignore dialogue at the state and local level, see, e.g., Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights From the Virginia and Kentucky Resolutions, 11 Const. Comment. 315 (1994); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993); Keith E. Whittington, The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change, Publius, Spring 1996; Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (1992).
8. For writings that do not ignore dialogue at the state and local level, see, e.g., Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights From the Virginia and Kentucky Resolutions, 11 Const. Comment. 315 (1994); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993); Keith E. Whittington, The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change, Publius, Spring 1996; Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (1992).
9. For writings that do not ignore dialogue at the state and local level, see, e.g., Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights From the Virginia and Kentucky Resolutions, 11 Const. Comment. 315 (1994); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993); Keith E. Whittington, The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change, Publius, Spring 1996; Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (1992).
10. For writings that do not ignore dialogue at the state and local level, see, e.g., Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights From the Virginia and Kentucky Resolutions, 11 Const. Comment. 315 (1994); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993); Keith E. Whittington, The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change, Publius, Spring 1996; Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (1992).
11. For writings that do not ignore dialogue at the state and local level, see, e.g., Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights From the Virginia and Kentucky Resolutions, 11 Const. Comment. 315 (1994); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993); Keith E. Whittington, The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change, Publius, Spring 1996; Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (1992).
12. See Moore, supra note 7, at 353; Whittington, supra note 7, at 3-11. More generally, see John J. Dinan, Keeping the People's Liberties: Legislators, Citizens, and Judges as Guardians of Rights (1998).
13. See Moore, supra note 7, at 353; Whittington, supra note 7, at 3-11. More generally, see John J. Dinan, Keeping the People's Liberties: Legislators, Citizens, and Judges as Guardians of Rights (1998).
14. See Moore, supra note 7, at 353; Whittington, supra note 7, at 3-11. More generally, see John J. Dinan, Keeping the People's Liberties: Legislators, Citizens, and Judges as Guardians of Rights (1998).
15. See, e.g., Fisher & Devins, supra note 7, at 197-302 (discussing abortion and race).
16. See Thomas L. Friedman, The Grand Bargain, N.Y. Times, Jan. 22, 1999, at A25.
17. See N.Y. Times, Dec. 21, 1998, at A1 (photograph and caption).
18. Gov. Fob James, State of the State Address (Jan. 13, 1998) (transcript available in Alabama Department of Archives and History, Alabama Governors Press Secretary Subject File, Montgomery, Alabama) [hereinafter James, State of the State Address].
19. 505 U.S. 833 (1992).
20. Pa. House of Representatives, 173d Sess. 1989 Leg. J. of the House 1755 (1989) (statement of Mr. Freind).
21. Id. at 1756.
22. Id. (statement of Mr. Itkin).
23. Nomination of Stephen G. Breyer to be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong. 160 (1994) (statement of Judge Stephen G. Breyer).
24. Nomination of David H. Souter to be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 101st Cong. 115 (1990) (statement of Judge David H. Souter).
25. Partial-Birth Abortion: The Truth, Joint Hearing before the Senate Comm. on the Judiciary and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. 39 (1997) (statement of Douglas Johnson) (brackets and ellipses omitted) [hereinafter Joint Hearing].
26. 138 Cong. Rec. 5813 (1992) (statement of Sen. Cranston).
27. Miller v. Civil City of S. Bend, 904 F.2d 1081, 1082, 1089 (7th Cir. 1990) (Posner, J., concurring).
28. E.g., id. at 1089, 1090, 1093.
29. Id. at 1091.
30. Id.
31. Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828 (Minn. 1991), discussed in Intellect and Craft: The Contributions of Justice Hans Linde to American Constitutionalism 92 (Robert F. Nagel ed., 1995) [hereinafter Intellect and Craft].
32. Friedman, 473 N.W.2d at 833 n.4.
33. Id. at 832-34.
34. The scholarship that sharply questions the Court's Establishment Clause jurisprudence is, of course, voluminous. For a specific effort to evaluate Governor James' constitutional claims, see Jonathan P. Brose, In Birmingham They Love the Governor: Why the Fourteenth Amendment Does not Incorporate the Establishment Clause, 24 Ohio N.U. L. Rev. 1 (1998).
35. James, State of the State Address, supra note 12, at 86.
36. Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992).
37. See supra text accompanying notes 17-18. Especially egregious in this regard was the confirmation testimony of Ruth Bader Ginsburg. Asked what in her own experience led her to devote so much of her career to breaking down the legal barriers "to the advancement of the women in our society," she replied with a series of personal stories. Nomination of Ruth Bader Ginsburg to be an Associate Justice of the Supreme Court of the United States: Hearings before the Senate Comm. on the Judiciary, 103d Cong. 134-35 (1993) (statement of Judge Ruth Bader Ginsburg). There was a story about when Ginsburg as a female law student was denied access to a room in the law library. Her account was made more vivid by this detail: [I]t was quite late at night, and I wanted to make sure I got home by midnight. My daughter, the professor (now) was then fourteen months old - no, that was my second year, so she was a few months over two years old. And I wanted to look up the citation, report back, and return home. Id. There followed stories about the exclusion of her mother-in-law from a Harvard Law Review banquet, about dormitory rules at Cornell and Harvard, and about a conversation with a waitress about a "most adorable steward" encountered on a transpacific flight. Id.
38. See supra notes 19-20 and accompanying text.
39. During the congressional debate over the Partial Birth Abortion Ban Act, Douglas Johnson asserted that opponents of the Bill had lied on a number of issues, including when Ron Fitzsimmons, Executive Director of the National Coalition of Abortion Providers said that the procedure was used less than 500 times a year. Joint Hearing, supra note 19, at 38. According to Johnson, Fitzsimmons admitted that this was a lie and explained, "I just went out there [before various media outlets] and spouted the party line." Id. Johnson claimed that the correct number was 2,000. Id. at 46. For other alleged falsehoods, see id. at 41-53.
40. See supra notes 21-24 and accompanying text.
41. See supra notes 25-27 and accompany text.
42. See Intellect and Craft, supra note 25, at 92.
43. This phrase and much of the ensuing analysis is adapted from Robert H. Frank & Philip J. Cook, The Winner-Take-All Society: Why the Few at the Top Get So Much More Than the Rest of Us (1995).
44. Id. at 45.
45. Quoted in id. at 3.
46. Id. at 11-14.
47. Id. at 192-93.
48. See id. at 127, 195-96.
49. See id. at 196.
50. Id. at 24.
51. Miller v. Civil City of S. Bend, 904 F.2d 1081, 1120 (7th Cir. 1990) (Easterbrook, J., dissenting).