THE STANDARD READER
The Standard Reader Books in Brief Narrowing the Nation's ife""' Power: The Supreme Court Sides with the States by John T. Noonan Jr. (Uni- versity of California Press,208 pp., $24.95). A slim...
...A respected, Reagan-appointed appellate judge with an ability to translate legal doctrine into English, Noonan could have sparked a broad public debate and, perhaps, induced the justices to rethink...
...The liberal advocacy mob and its patrons in the Senate have mobilized the same charges against supposedly "activist" judicial nominees...
...Steve Lenzner...
...A slim majority of the Supreme Court has over the past decade expanded states' immunities against federal authority...
...The Fourteenth Amendment authorizes Congress to enforce rights...
...Michael Greve Gender and Rhetoric in I g;™,,, Plato's Political Thought by J Michael Kochin (Cam...
...Kochin falls prey to neither dismissing the Plato of the Laws as a sexist nor celebrating the Plato of the Republic as a proto-feminist...
...They are "unjust," invite comparison with Dred Scott, and threaten to "return the country to a pre-Civil War understanding...
...Noonan's arguments and denunciations have been rehearsed in a torrent of law-review articles—and by the liberal justices' dissents in the leading cases...
...The root of that problem, though, is not states' rights ideology but a judicial failure to identify and protect the areas that Congress "has clearly no right to meddle with...
...At most, it has narrowed congressional powers...
...it provides no authority to create new rights...
...Noonan draws the important and underappreciated distinction between states' rights and a constitutional federalism, suggesting that he defends federalism...
...bridge University Press,MsaeaseJ 288 pp., $40...
...Noonan himself is forced to concede that Hamilton, Madison, and Marshall—the leading nationalists of the Founding era—recognized some realm of state immunity...
...Both these views are confident in their assumption that we today know what justice requires when gender and politics meet...
...That a literary study of Plato's Republic and Laws could teach us about the perennially vexed relation between the sexes may seem unlikely, yet Michael Kochin manages it in his timely examination of two timeless works...
...He writes explicitly for these purposes—and fails...
...Noonan's chief merit is to notice that the Rehnquist Court's "federalism" has assumed a disconcerting air of judicial imperialism and neo-con-federalism...
...Federalism cannot function without it...
...Particularly noteworthy is the manner in which Kochin powerfully raises the question of the relation between justice and happiness: His book compels one to wonder whether the just triumph of woman's equality has come at the expense of the happiness of both men and women...
...Nothing...
...He is no federalist...
...But then he goes on to write, "There's nothing to support the view that [state] immunity was part of the constitutional design or inherent in its plan...
...The Court has not narrowed "the nation's" powers...
...he is an adherent of the dogmatic nationalism that Robert F. Nagel, in his splendid The Implosion of American Federalism, has identified as the source of the hysterical opposition to the Rehn-quist Court's federalism decisions.The Court's extra-constitutional states' rights decisions remain troublesome, insofar as fidelity to the constitutional text is a vital means of constraining willful judges...
...It works only because exceptions to the principle prevent the absurd result of placing state conduct entirely beyond the reach of federal law...
...But Judge Noonan opposes state immunities only incidentally—be-cause he opposes any limit to congressional authority...
...These decisions are the target of John T. Noonan—who calls the Court's doctrines "overextended, unjustified by history, and unworkable...
...Kochin instead views the relation between the dialogues as a rhetorical problem—caused by the fact that "Men and women have distinctive occurrent aspirations and desires, even though the natural standard for human excellence is the same for both sexes...
...In the form of a dialogue, Noonan characterizes sovereign immunity as not only extra-constitutional but also self-contradictory...
...The true federalism problem is that the Court has not done nearly enough of that...
Vol. 8 • December 2002 • No. 16
