Overruled: A book review by Bob Morris

OverruledOverruled: The Long War for Control of the U.S. Supreme Court
Damon Root
Palgrave Macmillan Trade (November 4, 2014)

A brilliant analysis of “two compelling visions” of “what the role of the government and the courts should play in our society”

For non-attorneys such as I who have a keen interest in the interdependence of the executive, legislative, and judicial branches of the federal government throughout U.S. history, Damon Root’s focus is on one very important dimension of the Court: the philosophy of judicial restraint or deference to Congressional policy, in contrast with judicial activism. Two key mindsets are those of Libertarians (“minimum government, maximum freedom”) and Conservatives (strict compliance with the Constitution and Bill of Rights. Articles of faith are based on principles within the process of jurisprudence and opinions are divided — sometimes sharply divided – about which are more worthy, and, in some instances, the most significant disagreements are ultimately resolved by the Supreme Court.

Officially, the Revolutionary War ended when the Treaty of Paris was signed in Paris by representatives of King George III of Great Britain and representatives of the United States of America on 3 September 1783. However, as Andrew Schocket explains in his recently published book, Fighting over the Founders: How We Remember the American Revolution, there have been disagreements — sometimes severe disagreements — about various issues. For example, “One of the debates for which we conscript the founders is whether the United States is a national of individuals or a national community. It comes up when we talk about guns, or health care, or speech, or the Internet and in many other arenas. Of course, we are both individuals and community members.” If a new nation remains a work in progress, can the same be said of its constitution with amendments? Must a civil war be fought to preserve the union? In that event, why were so many men and all women denied the right to vote until well into the twentieth century?

These are among the dozens of passages of greatest interest and value to me, also listed to suggest the scope of Root’s coverage:

o The Meaning of the Fourteenth Amendment (Pages 26-30)
o Expanding Liberty’s Reach (35-38)
o Liberty of Contract (45-48)
o Progressive Democracy (50-54)
o In Restraint of Liberty (54-57)
o “Bold, Persistent Experimentation” (62-65)
o The New Deal Revolution (73-76)
o Footnote Four (80-86)
o “An Extreme Individualistic Philosophy” (99-101)
o The Big Tent (106-110)
o “Judicial Responsibility” (123-125)
o “The Necessity of Judicial Action” (141-144)
o “Sympathetic Clients, Outrageous Facts, Evil Villains” (144-150)
o Two Libertarians Walk Into a Bar” (171-174)
o “There Is a Role for Judicial Review” (185-187)
o “Conservatives Versus Libertarians”(q195-196
o History Matters (196-199)
o “We Start with First Principles” (212-214)
o “It Is Not Our Job” (235-236)

Obviously, there are ascending levels at which the process of jurisprudence can be conducted, with provision for appeal prior to the highest level at which some decisions – but not a majority — have been over-ruled. The long war to which the subtitle of Damon Root’s brilliant book refers correctly suggests that, since 1789 when the Supreme Court of the United States was established pursuant to Article III of the United States Constitution, there has been waged an unending “war” for control of the Court.

I agree with Hon. Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel, and Distinguished Visiting Professor of Constitutional Jurisprudence, Brooklyn Law School: “Damon Root, whom I have had the pleasure of interrogating on television, understands the concept of personal liberty in a free society better than many members of the legal profession; and he knows, too, that the Constitution was written by men who properly feared the numerous insidious ways that government assaults our natural rights. In Overruled, he shares his knowledge and uncanny ability to explain liberty lost with his readers. This book is nothing short of a lucid and brilliantly crafted history of the Framers’ fears coming to pass at the hands of a judiciary faithless to first principles. Read it today so you can anticipate and understand the judicial contortions coming tomorrow.” With the historical background and thematic context that this book provides, I do indeed feel much better prepared to absorb, digest, and evaluate what occurs in the Supreme Court of the United State as this nation proceeds into a future more uncertain than any before that I can recall.

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