The Tempting of America

Acknowledgments xvii Introduction 1(14) I The Supreme Court and the Temptations of Politics 15(118) Creation and Fall 19(32) The First Principles of the Social Compact 19(1) The Divided John Marshall 20(8) Chief Justice Taney and Dred Scott: The Court Invites a Civil War 28(6) The Spirit of the Constitution and the Establishment of Justice 34(2) Judicial Activism in the Service of Property and Free Enterprise 36(15) The New Deal Court and the Constitutional Revolution 51(18) Federalism and Sick Chickens 51(3) Roosevelt Fails, Then Succeeds, in Remaking the Court 54(2) The Court Stops Protecting Federalism 56(1) Economic Due Process Abandoned 57(1) The discovery of ``Discrete and Insular Minorities'' 58(3) Laying the Foundation for Substantive Equal Protection 61(8) The Warren Court: The Political Role Embraced 69(32) Arrested Legal Realism 69(5) Brown v. Board of Education: Equality, Segregation, and the Original Understanding 74(10) One Person, One Vote: The Restructuring of State Governments 84(6) Poll Taxes and the New Equal Protection 90(1) Congress's Power to Change the Constitution by Statute 91(2) Applying the Bill of Rights to the States 93(2) The Right of Privacy: The Construction of a Constitutional Time Bomb 95(6) After Warren: The Burger and Rehnquist Courts 101(28) The Transformation of Civil Rights Law 101(9) Judicial Moral Philosophy and the Right of Privacy 110(16) The First Amendment and the Rehnquist Court 126(3) The Supreme Court's Trajectory 129(4) II The Theorists 133(134) The Madisonian Dilemma and the Need for Constitutional Theory 139(4) The Original Understanding 143(18) The Constitution as Law: Neutral Principles 143(3) Neutrality in the Derivation of Principle 146(1) Neutrality in the Definition of Principle 147(4) Neutrality in the Application of Principle 151(2) The Original Understanding of Original Understanding 153(2) The Claims of Precedent and the Original Understanding 155(6) Objections to Original Understanding 161(26) The Claim that Original Understanding Is Unknowable 161(6) The Claim that the Constitution Must Change as Society Changes 167(3) The Claim that There Is No Real Reason the Living Should Be Governed by the Dead 170(1) The Claim that the Constitution Is Not Law 171(5) The Claim that the Constitution Is What the Judges Say It Is 176(1) The Claim that the Philosophy of Original Understanding Involves Judges in Political Choices 176(2) ``The Impossibility of a Clause-Bound Interpretivism'' 178(9) The Theorists of Liberal Constitutional Revisionism 187(36) Alexander M. Bickel 187(7) John Hart Ely 194(5) Laurence Tribe 199(7) More Liberal Revisionists of the Constitution 206(13) Justice William J. Brennan, Jr. 219(4) The Theorists of Conservative Constitutional Revisionism 223(18) Bernard Siegan 224(5) Richard A. Epstein 229(2) Justice John Marshall Harlan 231(4) A Judicial Philosophical Free-for-All 235(6) Of Moralism, Moral Relativism, and the Constitution 241(10) The Impossibility of All Theories that Depart from Original Understanding 251(10) In Defense of Legal Reasoning: ``Good Results'' vs. Legitimate Process 261(6) III The Bloody Crossroads 267(84) The Nomination and the Campaign 271(24) The Hearings and After 295(28) The Charges and the Record: A Study in Contrasts 323(14) The Civil Rights of Racial Minorities 324(2) The Civil Rights of Women 326(5) Big Business, Government, and Labor 331(2) Freedom of Speech Under the First Amendment 333(4) Why the Campaign Was Mounted 337(8) Effects for the Future 345(6) Conclusion 351(6) Appendix: The Constitution of the United States of America 357(21) Notes 378(29) Table of Works Cited 407(8) Table of Cases 415(4) Index 419