1. The public outcry that arose after the Supreme Court’s decision in Bush v. Gore (531 U.S. 98 2000) is a good example. Of course, the justices who ruled in Bush’s favor denied that they were influenced by party loyalty, but after reading their opinions, constitutional law experts found that claim hard to believe. The more important point is that if the disputed election had been decided in the House of Representatives, no one would have complained about a Republican congressperson voting in favor of the Republican candidate for president.
2. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
1. There are exceptions, but they tend to prove the rule. The first ten amendments, which comprise the Bill of Rights, were enacted using the Article V process, but this was a prearranged deal entered into to assure that the Constitution itself would be ratified. So too the civil rights amendments—the Thirteenth, Fourteenth, and Fifteenth—also followed the Article V procedure, but they were only able to pass because most white southern voters were not allowed to participate in the elections for the legislators who approved them.
2. NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937).
3. John Yoo, Powers of War and Peace, 12.
4. Jack Goldsmith, Terror Presidency, 82-83.
5. Ibid., 198.
6. 343 U.S. 579 (1952).
7. Dean Harold Koh of Yale Law School has described Jackson’s concurrence as cogently articulating “a flexible theory of decision-making premised upon separated institutions sharing powers.” Harold Koh, National Security Constitution, 108.
8. Ibid., 106.
9. 50 U.S.C. Sec. 403(d)(5).
10. Tim Weiner, Legacy of Ashes, 76, 77. Weiner summarizes President Eisenhower’s commitment to use of the CIA for covert activities, including “paramilitary warfare missions.” He also refers to a 1963 FBI report that the CIA (with Robert Kennedy’s knowledge) tried to assassinate Castro (372-73). There is no direct evidence linking John Kennedy to the plot but also little reason to believe that his brother would consent to such a plan without his knowledge.
11. Ibid., 74.
12. Arthur M. Schlesinger, Imperial Presidency, 158.
13. Tim Weiner, Legacy of Ashes, 160.
14. Ibid., 180.
15. Ibid., 372-73.
16. Ibid., 207.
17. Taylor Branch, Parting the Waters, 909.
18. Tim Weiner, Legacy of Ashes, 251.
19. See Stanley Karnow, Vietnam, 380-92.
20. Tim Weiner, Legacy of Ashes, 252-53, 301.
21. See Geoffrey Stone, Perilous Times, 483-88.
22. See Arthur Schlesinger, Imperial Presidency, 187.
23. Ibid., 187.
24. See Arthur Schlesinger, Imperial Presidency, 255-66.
25. Quoted in Harold Koh, National Security Constitution, 149.
26. U.S.C. Ch. 36.
27. 5 U.S.C. Sec. 552 et seq.
28. Tim Weiner, Legacy of Ashes, 357.
29. Ibid., 408.
30. Quoted in Charlie Savage, Takeover, 55.
31. Ibid., 56.
32. Jack Goldsmith, Terror Presidency, 36-37.
33. Ibid., 36-37.
34. Ibid., 36.
35. James Bamford, Pretext for War, 261.
36. Quoted in Charlie Savage, Takeover, 122.
37. Ibid., 131.
38. Goldwater v. Carter, 444 U. S. 996 (1979).
39. 18 U.S.C.A. Sec. 2340(1).
40. See Memorandum from Jay S. Bybee, Assistant Attorney General, to White House Counsel Alberto Gonzales, Standards of Conduct for Interrogation under 18 U.S.C. Sections 2340-2340A, reprinted in Greenberg and Dratel (eds.), Torture Papers, 172, 207.
41. See Charlie Savage, Takeover, 225.
42. See John Yoo, Powers of War and Peace.
43. See Jack Goldsmith, Terror Presidency, 87-88.
44. See Yoo, Powers of War and Peace, 18-19.
45. Ibid., 145.
46. See Jack Goldsmith, Terror Presidency, 178-85.
47. Arthur Schlesinger, Imperial Presidency, 2.
48. Richard Posner, Not a Suicide Pact.
49. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
50. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Court also rejected legislation proposed by the president and passed by Congress that dramatically limited the right of habeas corpus. Boumediene v. Bush, 128 S. Ct. 2229.
1. See John Denvir, Democracy’s Constitution, chapter 4.
2. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers No. 1 (Hamilton).
3. See generally, Jeffrey Tulis, The Rhetorical Presidency.
4. Article I, Section 7, clause 2.
5. Jeffrey Tulis, The Rhetorical Presidency, 135.
6. Ibid., 159.
7. H. W. Brands, Woodrow Wilson, 80.
8. George Creel, How We Advertised America, 5.
9. James Mack and Cedric Larson, Words That Won the War, 104.
10. Ibid., 63-64.
11. Walter Lippman, Public Opinion, 248.
12. Stanley Karnow, Vietnam, 597.
13. Reeves, Alone in the White House, 144.
14. Karnow, Vietnam, 61.
15. Ron Suskind, The One Percent Doctrine, 296.
16. James Bamford, Pretext for War, 286 (quoting Richard Clarke).
17. Bob Woodward, Plan of Attack, 92.
18. Ibid., 95.
19. Ibid., 119-20.
20. Ibid., 132.
21. Ibid., 120.
22. Ron Suskind, One Percent Doctrine, 168.
23. Bob Woodward, Plan of Attack, 164.
24. Ibid., 172.
25. James Bamford, Pretext for War, 323.
26. Ibid., 324.
27. Ibid., 324.
28. Joseph Cirincione et al., WMD in Iraq, 71.
29. Ibid., 70.
30. Ibid., 71.
31. James Bamford, Pretext for War, 377.
32. 376 U.S. 254, 271-72 (1964) (quoting NAACP v. Button, 371 U.S. 415 (1963)).
33. Cohen v. California, 403 U.S. 15 (1971).
34. Mark Hertsgaard, On Bended Knee, 72.
35. Bob Woodward, Plan of Attack, 193.
36. James Bamford, Pretext for War, 317.
37. See Board of Education v. Pico, 457 U.S. 853 (1982).
38. Thomas I. Emerson, The System of Free Expression, 712.
39. Steven Shiffrin, “Government Speech,” 27 UCLA L. Rev. 565 (1980), 595.
40. Mark Yudoff, When Government Speaks, xv.
41. Ibid., 157.
42. Whitney v. California, 274 U.S. 357, 377 (1928).
43. Ron Suskind, One Percent Doctrine, 243.
44. Ibid., 243-48.
45. Karnow, Vietnam, 592.
46. Ron Suskind, One Percent Doctrine, 196-97.
47. Ibid., 197.
48. Such a statute was upheld in Pestrak v. Ohio Elections Comm., 926 F.2d 573 (1991), but a similar statute was struck down as a violation of freedom of speech in Rickert v. Public Disclosure Comm’n, 168 P.3d 826 (2007).
49. See Garrison v. Louisiana, 379 U.S. 64 (1964).
50. New York Times v. Sullivan, 376 U.S. 254 (1964).
51. 376 U.S. 254, 279-80 (1964).
52. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
53. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); McConnell v. FEC, 540 U.S. 93 (2003).
54. Stephen Breyer, “Our Democratic Constitution,” 77 N.Y.U. L. Rev. 245, 253 (2002).
1. The First Amendment in its entirety reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” I will use the term “First Amendment” in this book to refer to the rights of free speech, free press, and political association.
2. 205 U.S. 454 (1907).
3. 250 U.S. 616 (1919).
4. See Geoffrey Stone, Perilous Times, 161.
5. See Robert Cover, “The Left, the Right, and the First Amendment,” 40 Maryland Law Review 349 (1981).
6. 250 U.S. 616, 630.
7. 274 U.S. 357, 375 (Brandeis, J., concurring).
8. 274 U.S. at 375.
9. 283 U.S. 697 (1931).
10. 299 U.S. 353 (1937).
11. 307 U.S. 496 (1939).
12. For a good overview of this period, see Geoffrey Stone, Perilous Times, ch. 5.
13. 341 U.S. 494 (1951).
14. See Geoffrey Stone, Perilous Times, 340-41.
15. I have relied on the followings works in my historical narrative of the civil rights era: Taylor Branch, Parting the Waters; David J. Garrow, Bearing the Cross; David Halberstam, The Children; John Lewis, Walking the Wind.
16. 347 U.S. 483 (1954).
17. Abrams v. New York, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
18. For a good overview of “massive resistance,” see Norman Bartley, Massive Resistance.
19. Norman Bartley, Massive Resistance, 193.
20. Norman Bartley, Massive Resistance, 210.
21. Morton Horwitz, The Warren Court and the Pursuit of Justice, 13.
22. See Lucas. A. Powe Jr., The Warren Court and American Politics, 117.
23. See e.g., Sherbert v. Verner, 374 U.S. 398 (1963).
24. See e.g., Engel v. Vitale, 370 U.S. 421 (1962).
25. See e.g., Roth v. U.S., 354 U.S. 476 (1957).
26. 395 U.S. 444 (1969).
27. 395 U.S. at 446.
28. 395 U.S. at 447.
29. It should also be noted, however, that on another issue the Brandenburg formula was a retreat from the Holmes-Brandeis formulation. In Whitney, Brandeis had insisted that there must be a reasonable fear of a “serious evil” before First Amendment protection terminated. The Brandenburg rule allowed prosecution of advocacy of any imminent illegal action if it were likely to be acted upon.
30. 357 U.S. 449 (1958).
31. 357 U.S. at 270.
32. 372 U.S. 229 (1963).
33. 372 U.S. at 235.
34. 383 U.S. 131 (1966).
35. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
36. 364 U.S. 479 (1960).
37. 376 U.S.at 270.
38. Associated Press v. Walker, 388 U.S. 130 (1967).
39. 380 U.S. 479 (1965).
40. 364 U.S. 479 (1960).
41. 364 U.S. at 488.
42. I have relied on the following works in the historical narrative of the Vietnam War era: Stanley Karnow, Vietnam; Todd Gitlin, The Sixties; David Maraniss, They Walked into Sunlight; William M. Hammond, Reporting Vietnam; Larry Berman, No Peace, No Honor; James Davis, Assault on the Left; Richard Reeves, Alone in the White House.
43. 385 U.S. 116 (1966).
44. 393 U.S. 233 (1968).
45. 394 U.S. 705 (1969).
46. 394 U.S. at 706.
47. 397 U.S. 564 (1970).
48. 393 U.S. 503 (1969).
49. 418 U.S. 405 (1974).
50. 403 U.S. 518 (1972).
51. But the Warren Court did not always protect antiwar dissent. One major refusal was U.S. v. O’Brien, 391 U.S. 367 (1968). In O’Brien, a protester who publicly burned his draft card was prosecuted under a new congressional statute that made “knowing destruction” of a draft card a felony. Congress’s clear purpose was to express its outrage at the new protest tactic of draft-card burning. Instead of declaring this a form of censorship out of harmony with its earlier free speech decisions, the Supreme Court upheld the decision..
52. 403 U.S. 15 (1971).
53. 403 U.S. 713 (1971).
54. William Hammond, Reporting Vietnam, 126.
55. Stanley Karnow, Vietnam, 561.
56. Ibid., 26.
57. See Gertz v. Welch, 418 U.S. 323 (1974); Time Inc. v. Firestone, 423 U.S. 448 (1976).
58. See e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973).
59. In fact, Justice Breyer wrote an excellent little book in which he argues that “participatory self-government” is one of the cardinal values in our constitutional tradition. See Stephen Breyer, Active Liberty.
1. 283 U.S. 697, 716 (1931).
2. Alasdair Roberts, Blacked Out, 49.
3. Ibid., 45.
4. 403 U.S. 713 (1971).
5. 403 U.S. at 75,57-58.
6. 403 U. S. at 717.
7. 403 U.S. at 726-27.
8. Floyd Abrams, Speaking Freely, 52.
9. Richmond Newspapers, Inc. v. Virginia, 444 U.S. 555, 587-88 (1980) (Justice Brennan, concurring in judgment). See also William J. Brennan, “Address,” 32 Rutgers L. Rev. 173 (1979).
10. 438 U.S. 1 (1978).
11. 438 U.S. at 32.
12. 438 U.S. at 32.
13. 5 U.S.C. Sec. 551-52.
14. 331 F.3d 918 (D.C. Cir. 2003); cert. den. 124 S.Ct. 1041 (2004).
15. 215 F. Supp. 2d 94 (D.D.C. 2002).
16. 331 F.3d at 928.
17. 331 F.3d at 940.
18. 345 U.S. 1 (1953).
19. Ibid. at 7-8.
20. Ibid. at 8.
21. Sissela Bok, Lying: Moral Choice in Public and Private Life (1978), 7 (quoted in Louis Fisher, In the Name of National Security, 22).
22. Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190 (9th Cir. 2007).
23. Senator Ted Kennedy and Senator Arlen Specter have introduced legislation—the State Secrets Protection Act—that prescribes this type of procedure.
24. Louis Fisher, In the Name of National Security, 165-69.
25. 418 U.S. 683 (1974).
26. 418 U.S.683, 706 (1974).
27. 408 U.S. 665 (1972).
28. Quoted in Daniel Ellsberg, Secrets, 432.
29. One exception to this general practice was the prosecution of Vice-President Cheney’s chief aide, Scooter Libby, relating to his authorized “leak” of the fact that Valerie Plame was a CIA agent. Libby was eventually convicted of lying to the FBI. But this exception in a way proves the rule. The Plame affair caused so much political controversy that Attorney General John Ashcroft was forced to appoint a special counsel to decide whether to prosecute. Such an appointment is a rare event; in most cases of authorized leaks, the attorney general simply decides not to prosecute. Even in this case the official who made an authorized leak was given preferential treatment. President Bush commuted Libby’s sentence.
30. 50 U.S.C. Sec. 421.
31. See United States v. Morison, 604 F.Supp. 655; appeal dismissed, 774 F. 2d 1156 (4th Cir. 1985).
32. 408 U.S. 665, 725 (1972).
33. William Hammond, Reporting Vietnam, 39-41.
34. Quoted in Philip Knightly, The First Casualty, 419.
35. Tom Gjelten, National Public Radio reporter, quoted in Robert Jensen, “Embedded Reporters’ Viewpoint Misses the Main Point,” University of Texas, Aug. 20, 2009, http://uts.cc.utexas.edu/~rjensen/freelance/attack61.htm.
36. See Bennett, Lawrence, and Livingston, When the Press Fails, 43.
37. Cass Sunstein, Republic.com. 2.0.
1. Whitney v. California, 274 U.S. 357, 375 (Brandeis, J., concurring).
2. United for Peace and Justice v. City of New York, 243 F. Supp. 2d 19 (S.D. NY 2003); aff’d 323 F.3d 175 (2d Cir. 2003).
3. 243 F. Supp. 2d 19, 23.
4. 323 F. 3d 135 (2d Cir. 2003).
5. 243 F. Supp. 2d 19, 25.
6. 323 F. 3d 175, 176.
7. 243 F. Supp 2d 19, 31.
8. 243 F. Supp 2d 19, 33, fn. 15.
9. 243 F. Supp. 19, 23.
10. Christopher Dunn, Arthur Eisenberg, Donna Lieberman, Alan Silver, and Alex Vitale, Arresting Protest: A Special Report of the New York Civil Liberties Union on New York City’s Protest Policies at the February 15,2003 Antiwar Demonstration in New York City (April 2003),14.
11. Ibid., 19.
12. See Coalition to Protest the Democratic National Convention v. City of Boston, 327 F. Supp. 2d 61 (Mass. 2004); aff’d Black Tea Socy. v. City of Boston, 378 F.3d 8 (1st Cir. 2004).
13. 327 F. Supp. 2d at 67.
14. Id. at 76.
15. Id at 78. During the 2004 campaign, anti-Bush protesters also found that they were not allowed to attend Bush rallies to even silently express their opposition to his war policies. The rallies’ sponsor, the Republican National Committee, was able to successfully argue that under another Rehnquist Court First Amendment decision (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995)), permitting anti-Bush protesters to attend a rally would unconstitutionally interfere with the rally’s sponsors’ right to control the message of their speech. The Hurley case involved an attempt by gays of Irish descent to march in the Boston St Patrick’s Day parade. The Supreme Court held that to require the parade’s organizers to allow the gays to march in the parade under a gay rights banner would violate the parade organizers’ free speech right to control their own message. The result was to allow the Bush campaign team to create media events for television audiences that showed no sign of public opposition to Bush’s policies.
16. They would not appear to explain why over one hundred thousand people came to New York City in February of 2003 to protest President Bush’s plans to invade Iraq.
17. See Menotti v. City of Seattle, 409 F. 3d 1113 (9th Cir. 2005).
18. For a good anecdotal account of the demonstrations, see Janet Thomas, The Battle in Seattle.
19. Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005).
20. 409 F.3d 1113, 1158, 1162 (Paex, concurring and dissenting).
21. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45-46.
22. 491 U.S. 781 (1989).
23. 491 U.S. at 798-99.
24. 452 U.S. 640 (1981).
25. 452 U.S. 640, 654-55.
26. 534 U.S. 316 (2002).
27. 534 U.S. at 324.
28. 534 U.S. at 318 fn.1
29. U.S. v. U.S. District Court, 407 U.S. 297, 314 (1972).
30. Geoffrey Stone’s book has an informative chapter on this time. Perilous Times, ch.6.
31. See generally, Geoffrey Stone, Perilous Times, 483-88.
32. See generally, Donner, Protectors of Privilege, 91 et seq.
33. Intelligence Activities and the Rights of Americans, Book II, Part III, Subpart D, Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Operations, United States Senate, 94th Cong. 2d Sess. 71 (4/26/76) (hereafter Church Committee Report, Book II), 211.
34. Church Committee Report, Book II, 89.
35. Cole and Dempsey, Terrorism and the Constitution, 93.
36. 18 U.S.C. 2709.
37. 50 U.S.C. 1801 et seq.
38. Pallitto and Weaver, Presidential Secrecy, 175.
39. Ibid., 189.
40. Mark Schlossberg, “The State of Surveillance: Government Monitoring of Political Activity in Northern and Central California,” ACLU of Northern California, available at http://aclunc.org/issues/government_surveillance_the_state_of_surveillance_shtml. Last accessed Aug. 20, 2009.
41. See e.g., Jane Mayer, The Dark Side.
42. 357 U.S. 449 (1958).
43. 364 U.S. 479 (1960).
44. 408 U.S. 1 (1972).
1. Marbury v. Madison, 1 Cranch 137, 177 (1803).
2. An aide in the Bush administration told reporter Ron Suskind how this system operates to the disadvantage of what he disparagingly calls the “reality-based community”:
The aide said that guys like me were “in what we call the reality-based community,” which he defined as people who “believe that solutions emerge from your judicious study of discernible reality.” … “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors … and you, all of you, will be left to just study what we do.”
Ron Suskind, “Faith, Certainty, and the Presidency of George Bush,” New York Times Magazine, Oct. 17, 2004.
3. 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution (J. Elliot ed., 1866) (quoted in John Hart Ely, “Suppose Congress Wanted a War Powers Resolution That Worked,” 88 Columbia L. Rev. 1379, 1379 (1988)).
4. 343 U.S. 579 (1952).
5. 343 U.S. at 587.
6. 343 U.S. at 637.
7. 343 U.S. at 610-11.
8. 453 U.S. 654 (1981).
9. 453 U.S. at 685.
10. Harold Koh, The National Security Constitution, 134-49.
11. See INS v. Chadha, 462 U.S 919 (1983).
12. The Jackson concurrence has also fostered a constitutional jurisprudence that fails to give sufficient guidance for future cases. The Court never addresses the extent of the president’s independent power; instead it asks whether or not the Congress has approved the power by the passage of legislation at some time in the past. The key issue is always how the Court’s majority will interpret the “intent” of some broadly phrased congressional statute often passed long ago. Usually the only thing that study of the legislative history of such statutes makes clear is that members of Congress had never thought about the particular power now claimed by the president. The Court determines for itself the intent of legislation long after its passage. This does result in a holding in the individual case, but since the ruling on intent is limited to a single statute and a single claimed power, it gives little guidance for future cases. So when another case arises with a new claim of presidential autonomous power, the Court must return once more to studying the intent of Congress with regard to that power.
13. 542 U.S. 507 (2004).
14. 542 U.S. at 516-17.
15. Id. at 518.
16. But while the Hamdi court ruled for the president on the issue of whether he had power to set up the program, it ruled against him in holding that even a congressionally authorized program must conform to constitutional limits like the Due Process Clause, and that due process required that a detainee like Hamdi be given an opportunity to challenge whether he had been properly classified as an enemy combatant. In a strange turn of events, the Bush administration, which had claimed for over two years that Hamdi was a danger to national security, suddenly changed course and sent him to Saudi Arabia, where he was set free.
17. 548 U.S. 557 (2006).
18. 548 U.S. at 593 fn. 23.
19. Id. at 594.
20. Hamdan was later convicted by a military commission of providing material support for terrorism and sentenced to five and one-half years, most of which he had already served. Pentagon officials claimed that Hamdan could still be held indefinitely after the completion of his sentence.
21. See Max Farrand, 2 Records of the Federal Convention of 1787 (rev. ed. 1937) 318-19 (quoted in Stephen Dycus et al., National Security Law, 22.).
22. E.g. Flast v. Cohen, 392 U.S. 83 (1968).
23. 418 U.S. 166 (1974).
24. 418 U.S. at 176.
25. E.g. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Raines v. Byrd, 521 U.S. 811 (1997).
26. 50 U.S.C. Ch. 36.
27. NSA v. ACLU, 493 F.3d 644 (6th Cir. 2007); cert. den. 178 S.Ct. 1334 (2008).
28. 493 F.3d at 676 (quoting U.S. v. Richards, 418 U.S. 166, 179 (1974).
29. Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007).
30. The NSA spying program is not the only instance of illegal governmental conduct being shielded by courts’ deference to government secrecy claims. Consider the case of Khaled el-Masri, a German car salesman whom the CIA mistakenly took to be an al-Qaeda leader. The agency shipped him to a secret prison where he claimed to have been tortured before they realized their mistake and released him. When he brought suit challenging this conduct, the Fourth Circuit Court of Appeals dismissed it on the ground that it was blocked by the state-secrets privilege. Even though the privilege is usually used to prevent the discovery of specific information, the court ruled that it prevents the court from hearing the case at all if the continuance of the suit will risk exposure of military secrets. El-Masri v. United States, 479 U.S. 296 (4th Cir. 2007); cert. den. 128 373 (2007). It is not only Mr. el-Masri who is injured by this judicial abdication, but the democratic decision-making process itself. The public loses the information these lawsuits would provide about government illegality. As citizens we all suffer a symbolic but still very grievous injury in the sense of the personal shame we feel in knowing not only that our agents engage in brutality but also that our legal system is incapable of holding them responsible for their actions.
31. Richard Fallon, “Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons,” 59 N.Y.U. L. Rev. 13-15 (1984).
32. 1 Cranch 137, 177 (1803).
33. Abraham Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harv. L. Rev. 1281 (1976).
34. Sierra Club v. Morton, 405 U.S. 727, 731 (1972).
35. 493 F.3d 644, 693 (Judge Gilman, dissenting) (4th Cir. 2007).
36. E.g. Baker v. Carr, 369 U.S. 186 (1962) (equal protection–reapportionment); Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (equal protection–affirmative action).
37. Alexander Bickel, The Least Dangerous Branch, 16.
38. See e.g., Mark Tushnet, Taking the Constitution Away; Larry Kramer, The People Themselves.
39. John Denvir, Democracy’s Constitution, 2.
40. Mark Tushnet, Taking the Constitution Away, 160-61.
41. There are not only the Hamdi and Hamdan cases discussed in the text but also the case of Boumediene v. Bush, 128 S. Ct. 2229 (1908), in which the Court ruled congressional legislation avidly supported by the Bush administration as in violation of detainees’ constitutional right to habeas corpus.
42. Christopher Eisgruber, The Next Justice, 4.
43. 531 U.S. 98 (2000).
1. 274 U.S. 357, (1927).
2. I treat some of the issues at more length in my earlier book Democracy’s Constitution (2001).