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

By John T. Noonan Jr. and John T Noonan

Book Overview

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.

• Format: Hardcover
• Language: English
• ISBN: 0520235746
• ISBN13: 9780520235748
• Release Date: August 2002
• Publisher: University of California Press
• Length: 208 Pages
• Weight: 0.80 lbs.
• Dimensions: 8.5" x 0.8" x 5.8"

Customer Reviews

Activist Conservative Justices

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.

Exposing An Activist Court

Judge Noonan does not need to hide behind difficult-to-understand legalese in order to expose the Rehnquist Court's 5-4 judicial activism. The book puts a human face on the individuals whose rights have been ignored by a bare majority of justices who are more interested in protecting the "dignity" of the States than the dignity of the People -- though that concern for State "dignity" was not apparent when the same 5 justices decided Bush v. Gore. Any educated reader will easily understand Judge Noonan's description of the Rehnquist Court's outrageous activisim -- a critique all the more stinging becausae it comes from a Reagan-appointed judge who has never been accused of being a "liberal." As Judge Noonan observes, the 5 justices' "intepretation" of the Constitution seems more like an interpretation of the Articles of Confederation -- a document that failed to provide for an effective and independant federal government, thereby requiring enactment of the Constitution in order to preserve the United States. Highly recommended for all -- but especially recommended for lawyers and law students, who need to understand this revolutionary return to the properly discredited States Rights movement.

Narrowing the Nation's Power

Narrowing the Nation's Power: The Supreme Court Sides with the States written by John T. Noonan, Jr. is a book about the current Supreme Court and the 11th amendment to the U.S. Constitution.What I found interesting is that the author writes in a style that is easily understood and the book is well-documented as he explains how the Supreme Court is swaying toward the States vs. Federal in its thinking. This is an age old debate whether to be more States Rights of Federal in thinking and to interpretation of the law. Ever since the government of the United States has been formed this debate has been around.Does the Supreme Court systematically thwart justice to American through a states rights policy? The author makes a strong case and backs his judgement with case studies.This book takes complex legal doctrine and makes it enjoyable to read. To better understand the laws of the land we have the courts and the final say rests with the Supreme Court. The book explains some of these cases... states' immunity in age discrimination, disability discrimination, and violation of patents, trademarks, copyrights, and fair labor... insulation from paying damages, are just a few of the case torts reviewed in this book.The lawyer-ese is at a minimum so the layperson can get a good idea as to what and the why things are as they are. So, if you like reading about the laws that affect our daily lives this is a good book to start with.