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Narrowing the Nation's Power: The Supreme…
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Narrowing the Nation's Power: The Supreme Court Sides with the States

by John T. Noonan Jr.

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4032 Narrowing the Nation's Power The Supreme Court Sides with the States, by John T. Noonan, Jr. (read 2 June 2005) Noonan is a favorite of mine, and the four books I previously read by him(Contraception: A History of Its Treatment by the Catholic Theologians and Canonists, by John T. Noonan, Jr. (read 5 Jun 1967, Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia, by John T. Noonan, Jr. (read 16 Jun 1973) (Book of the Year), The Lustre of Our Country: The American Experience of Religious Freedom, by John T. Noonan, Jr. (read 24 Jan 2001) and The Scholastic Analysis of Usury, by John T. Noonan, Jr. (read 25 May 2005)) were really worth reading, one of them being the best book I read in 1973. This book is a 2002 book attacking the Supreme Court conservative majority's embracement of sovereign immunity, which is that Congress cannot legislate in ways limiting the states, grounded on the 11th Amendment. He assails City of Roene v. Flores, 521 U.S. 507, which held the Religious Freedom Restoration Act unconstitutional because congruence and proportionality had not been exercised by Congress--a finding reminiscent of the pre-New Deal days when the Court threw out legislation because the Court did not like it. This is a stunningly well-argued book by a leading conservative thinker in which the five person Rehnquist-voting conservative majority on the Court is shown to be 'activist' and non-respectful of Congress and laws it passes. A really thought-inducing book. ( )
  Schmerguls | Oct 16, 2007 |
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Amazon.com Product Description (ISBN 0520235746, Hardcover)

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.

(retrieved from Amazon Thu, 12 Mar 2015 18:21:45 -0400)

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. 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.… (more)

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