The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President

Book Description

During the course of American history, wrongful events have occurred and certain Americans have stood up and spoken out against these wrongs: Tom Paine, Edward R. Murrow, Daniel Ellsberg. Vincent Bugliosi takes his place in this special pantheon of patriots with his powerful, brilliant, and courageous expose of crime by the highest court in the land. When an article he wrote on this topic appeared in The Nation magazine in February 2001, it drew the largest outpouring of letters and e-mail in the magazine's 136-year history, tapping a deep reservoir of outrage. The original article is now expanded, amended, and backed by amplifications, endnotes, and the relevant Supreme Court documents.

Customer Reviews:

Educational.......2007-08-30

This book packs a lot of information into very few pages. Bugliosi does a good job of supporting his suppositions with law. There are so many points made, most everyone will be unaware of some of them. The biggest drawback for me was that sometimes Bugliosi strays into name-calling which leads one to begin to doubt if some of the scholarship isn't slanted more than is obvious at first blush.

A case Excellently Presented.......2007-08-05

Bugliosi is one of a kind! He makes his points clearly and effectively. I wish he could take all these so called "justices" to court where he would run circles around them with his startlingly clear reasoning and thinking, ending with them all being dragged off to the nearest prison for treason. A great book to get the juices of freedom flowing again from a great man who truly cares about justice.

Right Result, Wrong Reasoning.......2007-06-01

I voted for Al Gore in 2000 and wish that he were finishing his second term as President at this time. However, if you put partisan emotions aside and look at the full legal context of that election, it is clear that Bush was the legally elected President.

Article II of the Constitution gives state legislatures the authority to appoint electors to the electoral college, using whatever criteria each legislature establishes. In the early days of the Republic, most legislatures chose all electors themselves, by majority vote. Over time, other criteria were used, until now all 50 states award electors based on the results of the popular vote. With only one or two exceptions (I forget which states), the candidate with the highest popular vote in a given state gets ALL of that state's electoral votes.

For many decades, Florida has followed this procedure to award its electoral votes. But Florida election laws clearly state that the state legislature has the right to set aside the results of the popular vote totals; the legislature may then directly award, by majority vote of all legislators, the electoral votes to whichever candidate it chooses. In 2000, both Houses of the Florida legislature had solid Republican majorities. The Republican leaders of both bodies (and the Republican governor, Jeb Bush), clearly stated that, if necessary, they would call a special legislative session to award ALL Florida electors to George W. Bush.

Had that scenario occurred, here is what would likely have played out. On the day that Congress was scheduled to count the electoral votes, the Gore operatives would have challenged the Florida electoral count. Existing FEDERAL election laws would then have become operative. The Republican U.S. House majority would have awarded the electoral votes to Bush. The U.S. Senate would have voted 51-50 to award the electoral votes to Gore, with then Vice President Gore casting the tiebreaking vote in his favor. Federal law states that if the Senate and House award electors to different candidates, the governor of the state in question has the right to break the tie and award the electors to the candidate he so chooses. The Florida governor in 2000...Jeb Bush, George W.'s brother. In a last ditch effort to salvage the election for Gore, the Florida Supreme Court would probably have tried to use their powers of judicial review to thwart this scenario, by claiming that a state Supreme Court has authority to review all acts of its own legislature. However, the U.S. Supreme Court would certainly have ruled that the U.S. Constitution unequivocally gives the power to select electors (by whichever method it chooses) to state legislatures, outside the scope of state court judicial review - and by more than a 5-4 vote.

So there you have it, folks. Lament all you want over what federal election laws should be, bash the electoral college, lambaste the confusing "butterfly" ballots in south Florida, criticize the flimsy equal protection arguments of the 5 or 7 justices, etc. But all partisan feelings aside, George W. Bush was the legitimately, constitutionally elected winner of the 2000 Presidential election. All other legal reasonings in this book make for nice academic discussions, but are beside the point in any practical sense.

Doesn't mince any words.......2007-05-30

Bugliosi turns a prosecutor's eye to Bush v. Gore and finds the decision not just lacking substance, but a criminal act.

First he deals with motive. All of the 5 justices who chose Bush as president came up through partisan Republican politics. While that's expected (since they come to their positions through the political process), integrity in upholding their oath to support the Consitition has been expected to take precedence. Beyond their partisan pasts and connections, 3 of the 5 had immediate and direct interest in a Bush presidency. Justice O'Connor publically said that if Gore won she'd have to postpone her retirement at least 4 years (so as not to have a Democratic President apppoint her successor.) Justice Thomas's wife, through her Heritage Foundation position was poised to serve on the Bush transition team and Justice Scalia's two sons work for a law firm that handles Bush's legal business.

Bugliosi doesn't say what would happen if we, the non-elite, helped out friends or worked things to our interest through service on a jury, but I'm sure something would.

Next Bugliosi deals with the legal issues. How could the court accept Bush's argument that Bush needed "equal protection" from Gore? That is... the court assumed that Bush won the election and that by counting the votes Gore could take it away from him. Votes, 60,000 in this case, the sacred element of our democracy... the very core of what people fight and die for... were negated as the Court ignored its own entrenched states right biases and regarded time frames as inflexible when complete past practice and case law showed recounts and seating delegates, (with disputes always decided by states and state courts), to be viewed as target dates and not rigid dealines.

On p. 155 Bugliosi has a hypothetical script. He suggests the dialog of the justices and how they came to "reason out" their unsigned opinion that allowed them to pick the president over 50 million voting Americans.

In the early part of the book (written in 2001) he likens this decision to the "preposterous" idea that Republican prosecutors would prosecute only Democrats and vice versa. It was strange that he would mention it, because it was this exact thing that piqued my current interest in this 2001 book.

Supreme Court Betrayal.......2007-05-12

Mr. Bugliosi's excellent book brings into question the entire operation and philosophy of the supreme court. Perhaps the supreme court should be simply the highest appellate court and leave questions of constitutionality to the judicial committees of Congress. As Mr. Bugliosi points out, there is nothing in the Consitution that gives the Supreme Court the right to strike down federal and state laws as unconstitutional.

The Right to a Speedy and Public Trial: A Reference Guide to the United States Constitution (Reference Guides to the United States Constitution)

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The Right to a Speedy and Public Trial: A Reference Guide to the United States Constitution (Reference Guides to the United States Constitution)
Susan N. Herman
Manufacturer: Praeger Publishers
ProductGroup: Book
Binding: Hardcover

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ASIN: 0313321086

Book Description

Herman provides an analysis and reference guide for the rights to a speedy and public trial that the Sixth Amendment guarantees in all criminal prosecutions. She provides a history of the generation of each right from ancient times through the present. The public trial chapters analyze the development of Supreme Court case law interpreting the Sixth Amendment rights and the companion First Amendment right of public access to trials, and then discuss current questions about open proceedings involving alleged terrorists. The speedy trial chapters trace the development of the ideal of prompt proceedings and the Supreme Court's laws in this area, including a critique of the major Supreme Court cases. Discussion of recent case law highlights open issues regarding the scope of the Sixth Amendment rights and comments on the impact of speedy trial legislation introduced in the 1970s. Each section concludes with a bibliographical essay discussing the major books and law review articles written in each area and also included a table of cases cited.

An Affair of State: The Investigation, Impeachment, and Trial of President Clinton

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Like Danielle Steele
Judge Posner does it again!!!
Excellent on the Law, but falls short of its goal
Best of all impeachment books
Promises more than it delivers

An Affair of State: The Investigation, Impeachment, and Trial of President Clinton
Richard A. Posner
Manufacturer: Harvard University Press
ProductGroup: Book
Binding: Paperback

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ASIN: 0674003918

Amazon.com

Richard Posner is a top-ranking member of the United States judiciary and one of the most highly respected legal theorists and philosophers. In An Affair of State, he turns his attention to the impeachment of President Bill Clinton, which stemmed from charges of perjury and obstruction of justice regarding statements about his adulterous relationship with former White House staffer Monica Lewinsky. While Posner focuses on the actual legal issues involved rather than attempt to make a case for Clinton's or any of his Republican adversaries' being evil incarnate, he does not treat the president with kid gloves. Not only does Posner claim that Clinton is a brazen liar who "flaunts his religiosity, but gives religion a bad name," he makes a strong case that the charges of perjury against the president were valid, "that [he] in several instances obstructed justice in a legal sense, and that he has never admitted lying about his relationship with Lewinsky." Along the way, Posner considers several fascinating topics, including whether the president can pardon himself--theoretically, except in cases of impeachment, he can--and even, on occasion, displays a subtle dry wit. (Among the best one-liners: "[Alan] Dershowitz criticizes Clinton, but largely for the blunders he committed in trying to conceal his affair ... and implicitly for not having retained Dershowitz as legal advisor.") An Affair of State is the smartest, most level-headed book written to date about what Posner calls "the whole Clinton-Lewinsky-Starr-impeachment business"; it is likely to retain that status for some time to come. --Ron Hogan

Book Description

President Bill Clinton's year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict.

In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran-Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner's experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton's impeachment ordeal.

Customer Reviews:

Like Danielle Steele.......2006-11-27

Judge Richard Posner churns out books with the speed and depth of Danielle Steele. 'An Affair of State' was the second of his that I read, and it will be the last. This review was written six years ago. Nothing has been revealed since to make me change a word of it.

Richard Posner cheerfully admits he knows nothing of the background to the Clinton scandals, only what was published in the press or in legal documents.
This is not really true, as he does claim to know that Special Prosecutor Kenneth Starr is an upright fellow, with no sexual hangups, which is not an opinion that a reasonable man could form from any available reports.
Posner's obvious goal is to save Starr. But Starr is indefensible; not just suspect of many serious crimes, but vehemently suspect, as the medieval jurisconsults had it, meaning that no innocent explanation is possible.
Posner's strategy is to foist off Starr's transgressions on other players. For example, he asserts that the storm-trooper tactics of Office of Independent Counsel were the result of "aggressive" underlings, all "experienced prosecutors" who were able to maraud freely because their boss had no experience as a prosecutor.
This argument does not work. The previous special prosecutor, Robert Fiske, was removed improperly, as even Posner admits, by a panel of three right-wing judges. Joe Conason and Gene Lyons (in 'The Hunting of the President') have made an excellent case that the removal was a criminal conspiracy to impede justice.
The Three Stooges met with a right-wing Republican senator the day before Fiske was canned. Conason and Lyons believe the stooges knuckled under to right-wing pressure. Posner says since they all denied it, there is no "proof" that that is what happened.
Maybe not court proof, but is it plausible that that is not what happened? No.
Either the Three Stooges colluded in an illegal conspiracy to obstruct justice, or they made an honest decision to replace Fiske, followed by an unbelievably stupid one to appoint a special prosecutor with no experience. It was hardly a task at which the nation could afford to sponsor on-the-job training.
Even without a mealymouthed, self-righteous sicko like Starr at the top, the OIC was corrupt.
The strongest of many examples was the OIC's tampering with witness Sarah Hawkins. Conason and Lyons tell this sordid tale; Posner, revealingly, does not.
In the whole book, Posner does not devote even one whole sentence to the massive allegations against Starr.

Judge Posner does it again!!!.......2001-02-04

Judge Posner has written a concise and accurate analysis of the impeachment and trial of President Clinton, and included thorough and accurate assessments of all parties involved. Judge Posner concludes that the articles of impeachment filed against the President were indeed within the realm of high crimes and misdemeanors; additionally, Judge Posner argues that, contrary to popular spin, the actions of the President went beyond that of a private matter, bringing shame, disgrace, and disruption to the executive office -- actions which by themselves supported impeachment. Of most interest, however, is Judge Posner's excoriating portrayal of all parties involved. A president, who deliberately lied to the nation, his family, his cabinet, and his supporters, in a blatant effort to obstruct justice. A prosecutor, who failed in his effort at developing a strong case against the president, provided an overly lurid account of the case, and then buried the record in mountains of evidence. A house of representatives, incapable of developing accurate articles of impeachment, and then failing miserably in the prosecution of the case in the senate. A senate, so inept as to have never developed appropriate rules for an impeachment trial. And finally, partisan groups from both sides, who in the urge to defend or defeat the president, daily set forth on a path of lies and insinuations, often with the sole purpose of damaging the characters of individuals under media glare. The book is well worth reading, and is an excellent reminder of the damage an impeachment trial can do. Readers who are further interested in impeachment generally should consider Michael J. Gerhardt's The Federal Impeachment Process: A Constitutional and Historical Analysis.

Excellent on the Law, but falls short of its goal.......2001-01-29

Posner promises to rip the cover off the impeachment process by sorting through the spin and uncovering the truth of what Clinton was charged with, what he did, and how the impeachment process worked.

As a judge, he does a magnificent job (especially as he completed this book within days of the final vote) of cutting to the quick of the legal charges against Clinton, and examining the evidence that pretty undisputably proves Clinton "guilty".

But, and this is a very big but, his strength as a judge is Posner's weakness as a historian. He assumes, without proving, that the true issue in impeachment is (or should be) the legal issue. He virtually ignores the competing view, that the key issue is (and should be) political. Only by reading this book in combination with Rhenquit's history of the Samuel Chase and Andrew Johnson impeachments can you get a more rounded view.

As a matter of law, Clinton was guilty. However, we were not involved in a criminal trial. We were deciding whether to remove this country's highest elected official. This is a highly political question, to which the legal issues are relevent, but hardly decisive.

By failing to grapple honestly with this dichotomy, Posner's book ultimately falls short of being the definitive work on impeachment it could have been, given his incisive analysis of th elegal issues and the evidence.

Best of all impeachment books.......2001-01-24

After reading all of the impeachment books, and I mean all of them, including Benedict's fabulous book on Johnson's impeachment trial, this is the best. Posner removes the gloves for all parties involved and strikes many direct hits. While most of Posner's books are for the lawyerly elite, this book can be enjoyed by anybody who has a basic understanding of what happened during the Clinton scandal and is looking for a brilliant analysis.

Promises more than it delivers.......2001-01-15

Judge Posner promises a far-reaching analysis of the impeachment and trial of President Clinton. In his introduction, he notes that the "ordeal" presented numerous axes of analysis: issues of law, issues of jurisprudence, issues of morality, theories of conflict, issues of political and cultural sociology. (p. 3)

In applying these analytical perspectives to the particular issues raised within the context of President Clinton's impeachment, I think Judge Posner does an excellent job at cutting through the political spin and identifying the essential legal points. He deftly exposes "it's all about sex" as the dishonest mantra that Clinton supporters, such as James Carville, used to divert the public's attention away from the basic legal issues. His discussion of the relevant legal charges--obstruction of justice and perjury--is clear and accessible. Once the political spin is redacted, the conclusion is inescapable--Clinton committed perjury and thus violated the law.

Yet Judge Posner's book is ultimately dissatisfying. His book promises more than it delivers, and what I think is a significant issue--the nature of impeachment as it has been understood and used within the American constitutional order--remains relatively untouched by Posner's book. This is frustrating.

Beyond passing references to Samuel Chase and Andrew Johnson, Judge Posner never discusses their impeachment or their resulting trials. He notes the distinction between impeachment standards for judges versus the President, but he never discusses in any detail the impeachment and conviction of any judges. (The only discussion is Judge Posner's reference to Judge Nixon's impeachment and conviction for perjury in 1989, but this is made in a single-sentence footnote on page 103.) In his discussion of censure, Judge Posner writes that "Congress has used censure sparingly" (p. 191), but beyond a couple references to President Jackson, he never discusses any of the situations in which Congress has censured a government official and what this meant for Congress in 1998-1999.

Maybe I had unrealistic expectations, but with a chapter entitled "The History, Scope and Form of Impeachment," I was really hoping for some substantial scholarship on the constitutional issue of impeachment as it has been used against many judges and two Presidents in our nation's history. This type of analysis would have ensured that the latest edition of Posner's annual publications would stand the test of time and would always remain relevant, especially when President Clinton's impeachment simply becomes another paragraph in U.S. history textbooks. Unfortunately, I was left with the sense that Judge Posner should have spent a few extra months doing additional research to produce a true scholarly exegesis, rather than join the rush to publish in the wake of the media frenzy.

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Activist Judges? I give you an activist judge!

generally liberal and wrong, but a good subject introduction

Important Legal History

Marbury v. Madison : The Origins and Legacy of Judicial Review
William Edward Nelson , and William E. Nelson
Manufacturer: University Press of Kansas
ProductGroup: Book
Binding: Paperback

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M'Culloch V. Maryland: Securing a Nation (Landmark Law Cases and American Society)

The Pullman Case: The Clash of Labor and Capital in Industrial America (Landmark Law Cases & American Society)

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ASIN: 0700610626

Book Description

We take for granted today the tremendous power of the Supreme Court to interpret our laws and overrule any found in conflict with the Constitution. Yet our nation was a quarter-century old before that power of "judicial review" was fully articulated by the Court itself in Marbury v. Madison (1803). William Nelson's concise study of that landmark case provides an insightful and readable guide for students and general readers alike.

On the surface, the case itself seems a minor one at best. William Marbury, a last-minute judicial appointee of outgoing Federalist president John Adams, demanded redress from the Supreme Court in 1801 when his commission was not delivered. But Chief Justice John Marshall could clearly see the danger his demand posed for a weak court filled with Federalist judges. Wary of the Court's standing with the new Republican administration of Thomas Jefferson, Marshall hit upon a solution that was both principled and pragmatic. He determined that while Marbury was justified in his suit, the law on which his claim was based was in conflict with the Constitution. It was the first time that the Court struck down an act of Congress as unconstitutional, thus establishing the doctrine of judicial review, which designates the Court as chief interpreter of the Constitution.

Nelson relates the story behind Marbury and explains why it is a foundational case for understanding the Supreme Court. He reveals how Marshall deftly avoided a dangerous political confrontation between the executive and judicial branches by upholding the rule of law. He also shows how by asserting that the task of courts was one of discovering rather than making law, Marshall managed to shore up the Court's prestige and power rather than have it serve partisan political agendas.

Nelson clarifies how the Marshall court sought to preserve what was best in eighteenth-century constitutionalism while accommodating nineteenth-century political realities, and also traces the gradual transformation of Marbury-style judicial review since Marshall's time.

Although the Supreme Court did not assert its power of judicial review for another fifty-four years after Marbury, it has since then invalidated numerous acts of Congress. From Marshall's modest bid for consensus to what some consider the modern Court's "activist" excesses, judicial review has been a cornerstone in the edifice of the federal judiciary. Nelson's analysis helps us better understand how this fundamental principle emerged and why it still matters.

This book is part of the Landmark Law Cases and American Society series.

Customer Reviews:

Activist Judges? I give you an activist judge!.......2006-02-07

So the founding fathers more or less set up a judiciary for some purpose, likely similar to the British courts with which they were accustomed, and maybe laws would be struck down (John Jay had done this previously). So what's all this talk about Marbury v. Madison? Why should we care who Chief John Marshall was? This short book (125 pages) does an excellent job of answering these two vital questions. Marshall was a man with a powerful personality and great intelligence that focused the power of the judiciary and made it, through his own will alone it seems, into an equal arm of government. The author explores the historical undertones that brought the actually action to the court (as well as the sister actions), explores what made this decisions so different in form and function to all previous decisions. He then goes on to review some of the long term aspects within the judiciary as a direct result of this decision and closes by reviewing the impact of Marbury to other jurisdictions (countries).

generally liberal and wrong, but a good subject introduction.......2005-06-02

This book was written by a liberal east coast law professor.
Its an account of how the tyranny of the courts developed over
time and how they gained the power they have today. The writer
is mostly wrong in his conclusions, but he is a good source for
more serious writers on this subjects in that he at least gets
some of the facts right.

Judicial Review is the self-given unconstitutional power of the
federal courts to oversee the other branches of government and
to make laws for the country. While such powers were talked
about in the federalist papers, they were explicitly excluded
from the constitution and did not appear until 1803 when
John Marshall launched his politically motiviated coup against
the other branches while they were weak and divided.

The book clearly shows that the power of judicial review is
unconsitutional and how it was only created as a personal
decision made by Marshall. What is not mentioned was the
part secular humanism played in its creation. In a secular
humanist society, judges control the meaning of the law and
act as aribrary rulers over normal people. Elected leaders
are pushed to the side in favor of unelected judges who use
power in the name of the law to impose their will.

Chapter 1 makes the argument for a secular humanist government.
Chapter 2 shows how the conflict between the Federalists and
the liberals resulted in political gridlock which allowed the
courts to grab for power. The third chapter gives a biased
and wrong portrait of John Marshall. In Chapter 5, we see
how the liberals chipped away at the constitution a little bit
at a time with their new power. How they subverted the system
slowly and built up the power of the judges is in the next
chapter.

In Chapter 7, the book starts to look at the Crisis of democracy
in America during the 1930s. The socialist Franklin Roosevelt
was attempting to implement an anti-constitutional socialist
agenda on the country. The court attempted to stand up to
him, but after going eye-to-eye backed down. The writer doesn't
properly deal with events, but what happened was that democracy
failed for a time and the court itself was subverted by liberal
justices who entrenched themselves for a battle against freedom
that has lasted until today. The liberals used the conservative
attempt to defend the constitution with judicial review as an
excuse (when they gained power) to overthrow the whole
constitution and establish the judicial tyranny that exists
today. What that fight shows is that judicial review is useless
to those who would defend the constitution. It is only useful
in the hands of liberals who would destroy it.

The writer at this point shows his liberal hand of cards. He
comes out in favor of so-called minority rule against the
constitution and democracy. Minority rule is really rule by
secular humanist judges who want to be tyrants over ordinary
Americans. These are the people who want to give americans
rights they don't want while they take all our freedoms away.

A civil or a constitutional right is the creation of a government
of man. It has no meaning and no value. Freedom is the creation
of a strong people and the laws of nature. There is nothing more
precious than freedom and freedom is worth more than the entire
bill of rights and every decision by every judge who ever lived.

Rather than undemocratic minority government by judges, America
needs to restore the constitution and begin to trust its leaders
again. Congress and the President under our system should have
an equal opinion with the court on what the constitution means
and what is constitutional. In fact, since they are elected
by the people, their opinion should matter more than that of
the court.

At the end of the book, the liberal writer goes all out in
support of judicial tyranny. People and their elected leaders
can't be trusted. We need a living constitution where judges
rewrite it at will and our very lives can be taken away by
judges (see what happened this year in Florida).

Unelected judges can not be trusted with our freedom. They
are too easily corrupted by power and unaccountability. Nelson
fails, in particular to deal with the right to life and the law.
The right to life and being on the side of life is key to any
real system of law. Its in every document the founders wrote
and yet judges ignore it every day while presiding over murder
from the bench.

Nelson also plays the race card toward the end. He calls for
the preservation of the liberal status quo established in the
1930s and suggests that any attempt to restore the real american
law that existed before socialism put its claws into the country
under FDR will lead to racism. In fact, just the opposite is
true. Judges have been at the forefront of establishing
segregation and race in the law since the 1890s. True freedom
means what it says. It scares liberals, but restoring real
freedom would be worth more than any liberal promises of rights.

Disregarding the liberal nonsense at the end of the book, this
book clearly makes the case that judical review is
unconstitutional and can only lead to evil. He also establishes
(without knowing it) the case for fundemental reform of the
courts and the law. But rather than his world of secular
humanist liberalism, reform means making judges accountable,
restoring the right to life and property, ending the
anti-constitutional invention known as judicial review and
restoring the balance in government such that courts consider
the views of the president and congress in making decisions.

Important Legal History.......2004-05-14

Marbury v. Madison is a case that every law student knows and that very few people understand. Although modern legal discourse focuses on cases that decide social issues like racial preferences, abortion, and gay rights, none of these cases are as important as Marbury. The reason for this is simple - - unless Justice Marshall had established that it was the exclusive province of the judiciary to determine the constitutionality of legislation, none of the important social issues would be decided in the courts. They would be decided in the legislature or in the executive.

Book Description

This book explores the formation of the British state and national identity from 1603-1832 by examining the definitions of sovereignty and allegiance presented in treason trials. The king remained central to national identity and the state until Republican challenges forced prosecutors in treason trials to innovate and redefine sovereign authority. Although jurors resisted the change, by the 1790s parliament and prosecutors accepted that treason law protected all Britons and the general safety of the state.

Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts

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As far as I'm concerned the whole matter is settled
All the votes that are fit to count....
Thorough, but tedious reading
Disappointing
Exposes Bugliosi as a liberal B.S artist

Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts
Richard A. Posner
Manufacturer: Princeton University Press
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Binding: Hardcover

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ASIN: 0691090734

Book Description

The 2000 Presidential election ended in a collision of history, law, and the courts. It produced a deadlock that dragged out the result for over a month, and consequences--real and imagined--that promise to drag on for years. In the first in-depth study of the election and its litigious aftermath, Judge Posner surveys the history and theory of American electoral law and practice, analyzes which Presidential candidate ''really'' won the popular vote in Florida, surveys the litigation that ensued, evaluates the courts, the lawyers, and the commentators, and ends with a blueprint for reforming our Presidential electoral practices.

The book starts with an overview of the electoral process, including its history and guiding theories. It looks next at the Florida election itself, exploring which candidate ''really'' won and whether this is even a meaningful question. The focus then shifts to the complex litigation, both state and federal, provoked by the photo finish. On the basis of the pragmatic jurisprudence that Judge Posner has articulated and defended in his previous writings, this book offers an alternative justification for the Supreme Court's decision in Bush v. Gore while praising the Court for averting the chaotic consequences of an unresolved deadlock.

Posner also evaluates the performance of the lawyers who conducted the post-election litigation and of the academics who commented on the unfolding drama. He argues that neither Gore's nor Bush's lawyers blundered seriously, but that the reaction of the legal professoriat to the litigation exposed serious flaws in the academic practice of constitutional law. While rejecting such radical moves as abolishing the Electoral College or creating a national ballot, Posner concludes with a detailed plan of feasible reforms designed to avoid a repetition of the 2000 election fiasco.

Lawyers, political scientists, pundits, and politicians are waiting to hear what Judge Posner has to say. But this book is written for and will be welcomed by all who were riveted by the recent crisis of presidential succession.

Customer Reviews:

As far as I'm concerned the whole matter is settled.......2004-07-06

This book, while a difficult read, lays out the Constitutional arguments for the legitimacy of the Supreme Court's decisions in the presidential election of 2000. I didn't vote for Bush, and I won't vote for him in November, but after reading this book, I can accept that his presidency, while controversial, is legitimate. (Opposition to Bush's policies is a separate matter entirely, and I won't be sorry if he loses.)

All the votes that are fit to count...........2003-07-29

We are a little over a year away from the 2004 Presidential election and you can bet that the 2000 election will cast its shadow over the electorate. For that reason, Breaking the Deadlock remains a very timely read. Going into 2004, it's worth bearing in mind the book's central point: that the question of who won the popular vote in Florida was not a question of fact, but of law. "If the recount was unlawful, the winner of the recount would not be the winner of the election even if he was in some sense the more popular candidate." At the same time,however, Judge Posner acknowledges that Courts, including the Supreme Court, that interpret the law, and were interpreting Florida election, and U.S. Constitutional law in 2000, are themselves exercising a level of discretion that invariably calls into play extra-legal factors. The "people" shall be judge, as the sagacious philosopher Mr. Locke asserted, but who then are the people? Who counts? This text confronts that question. Not all of the material covered in this book was new to me. Still, I learned a significant amount about the 2000 election, and about the electoral process in general. Teachers, students and voters in general will find in Breaking the Deadlock a superb survey of a critical facet of U.S. political life.

Thorough, but tedious reading.......2003-07-17

Unlike most of Posner's other writing (his judicial opinions included), this book lacks the verve and wit that marks his style. What is here is a thorough examination of the Bush-Gore contretemps, in which the author concludes, quite persuasively, that almost everybody was right. Yes, the Democrats had a point -- Gore might have gotten more votes, had they all been counted. But yes, Harris was within her discretion to stop the vote-counting. And yes, the Supreme Court majority made the right decision to close the whole show.

While his conclusions are interesting, the analysis makes for tedious reading as Posner drills down to the most mundane details of the vote-counting. It's almost like reading a political science text and times, and that's not a good thing if you are a general reader (Posner's target audience, I believe).

Disappointing.......2002-11-29

Unfortunately, Posner ultimately ends up relying on the same intellectual dishonesty in trying to justify the Supreme Court's decision that at least three of the justices used in crafting the opinion. Left unaddressed is the most disturbing of Dershowitz's observation that these same three (Rehnquist, Scalia and Thomas, and probably others) completely ignored their overall "judicial philosophies" (as contained in their previous opinions) to install "their" man in the White House. It isn't the judicial activism that is the problem. Had these justices been consistent with what they SAID they believed in, the decision would have at least been defensible. As it stands, the decision is justifiable only as a raw exercise of Machiavellian rationale. THAT is the tragedy.

Exposes Bugliosi as a liberal B.S artist.......2002-07-12

After reading the junk books by Bugliosi and Dumbshawitz it's nice to read a book that uses actual law as a criteria.

There is a reason that Bugliosi claims the verdict was 5-4 (Not 7-2) and why he avoids the Reynolds v Sims ruling..Bugliosi is a hack!

Book Description

In a free society where it often seems nothing is sacred, many feel that one thing at least should be: the American flag. For most Americans, no symbol is more charged with emotion, and incidents of its abuse have led many to declare that freedom of expression has its limits.

When Gregory Lee Johnson burned a flag as part of a political protest, he was convicted for flag desecration under Texas law, but the Texas Court of Criminal Appeals reversed the conviction on First Amendment grounds and the Supreme Court confirmed that physically damaging the flag constituted symbolic--and protected--speech. Robert Justin Goldstein now examines this landmark case and the attendant controversy over whether protection of the flag conflicts with constitutional guarantees of free speech. He also explores the case's ramifications for future legal battles.

Goldstein, who has published widely on the flag desecration debate, offers a concise and updated account of the controversy for students and general readers. He traces the history of the flag protection movement from its nineteenth-century origins through the enactment of early state laws, and he examines modern incidents of flag desecration from the Vietnam era to the present.

At the heart of the book is the Johnson case and the political firestorm that it ignited. Goldstein examines the legal and philosophical issues surrounding the case through courtroom testimony, oral arguments, and interviews with Johnson, the lawyers (including former Whitewater prosecutor Kenneth Starr and the late famed "radical attorney" William Kunstler), and the judges who heard the many rounds of appeals. He then takes us inside the Supreme Court to analyze the justices' reasoning that government may not prohibit the expression of an idea simply because society finds it offensive. Finally, he looks at reactions to the decision--including recent heated attempts to protect the flag through legislation or constitutional amendment.

Goldstein helps us better understand the human emotion and psychological drama that underlie abstract legal and constitutional issues and that fundamental rights sometimes are held by the courts to be superior to majority rule or popular emotion. By demonstrating how competing and often contradictory concepts can be embodied in the very same symbol, he helps us understand the fundamental meanings of democracy and patriotism.

Book Description

Before 1954, both law and custom mandated strict racial segregation throughout much of the nation. That began to change with Brown v. Board of Education, the landmark decision that overturned the pernicious "separate but equal" doctrine. In declaring that legally mandated school segregation was unconstitutional, the Supreme Court played a critical role in helping to dismantle America's own version of apartheid, Jim Crow.

This new study of Brown--the title for a group of cases drawn from Kansas, Virginia, South Carolina, Delaware, and the District of Columbia--offers an insightful and original overview designed expressly for students and general readers. It is concise, up-to-date, highly readable, and very teachable.

The authors, all recognized authorities on legal history and civil rights law, do an admirable job of examining the fight for legal equality in its broad cultural and historical context. They convincingly show that Brown cannot be understood apart from the history of caste and exclusion in American society. That history antedated the very founding of the country and was supported by the nation's highest institutions, including the Supreme Court whose decision in Plessy v. Ferguson (1896) supported the notion of "separate but equal."

Their book traces the lengthy court litigations, highlighting the pivotal role of the National Association for the Advancement of Colored People and including incisive portraits of key players, including co-plaintiff Oliver Brown, newly appointed Chief Justice Earl Warren, NAACP lawyer and future Supreme Court justice Thurgood Marshall, and Justice Felix Frankfurter, who recognized the crucial importance of a unanimous court decision and helped produce it. The authors simply but powerfully narrate their story and show that Brown not only changed the national equation of race and caste--it also changed our view of the Court's role in American life.

As we prepare to commemorate the decision's fiftieth anniversary in May 2004, this book invites readers to appreciate the lasting importance of what was indisputably a landmark case.

This book is part of the Landmark Law Cases and American Society series.

Customer Reviews:

Court cases leading up to Brown v. Board of Education.......2007-07-13

Read this for graduate American history course. This book begins with a brief look at African-American history from slavery to Plessy v. Ferguson and Jim Crow. This history is important to understanding the events that led up to the infamous Brown v. Board of Education case. The authors explain throughout the book not only what the black population endured but also how these events in our nation's history led those involved in the Brown case to feel they finally had a chance at achieving what they had been fighting for. Although this case is known for forever altering American race relations, there were other lesser known and often forgotten cases which paved the way for the Brown decision. Before Mr. Marshall took Harry Brigg's case, Sarah Roberts, Dred Scott, Adolfus Plessy, and Lloyd Gaines had already used the courts to address the issues of segregation and racial prejudices.

Brown dealt with a caste system that dated back to antebellum America. The caste system was developed when the Supreme Court played a significant role in disassembling federal protection for blacks and allowing a system of caste-like restrictions that were to be reestablished and strengthened after Reconstruction (6). Even though the Thirteenth Amendment abolished slavery and allowed Negroes to declare their citizenship, it only heightened the investigation for ways to clearly characterize the inferior status for African Americans.

In 1846 a black printer, Benjamin Roberts, wanted to enroll his five year old daughter,Sarah, in the nearby primary school. However, she was cast out because the school closest closest to her home was an all white school. Benjamin Roberts was required to enroll his daughter in the primary school for colored children, which was farther away. Roberts chose to file suit against the city of Boston on behalf of his daughter (15). The case was tried in the Massachusetts Supreme Judicial Court and was presided overby Chief Justice Lemuel Shaw, who decided against Roberts,believing that the institution is unfair; however, he abandoned
the idea of instantaneous abolition anyway (16).

In 1857, the issue of Negro citizenship was under attack in the case of Dred Scott v. Sanford. It was obvious that the South was against the idea that blacks (free or otherwise) were citizens of the different states and of the United States. Dred Scott wanted the court to decide whether they were going to agree with the North or the South asto whether or not
blacks should be considered citizens. Unfortunately, Chief Justice Roger Brooke Taney chose the southern view (22).

Before Brown v. Board of Education there was Jim Crow which developed a system of rigid separation between blacks and whites in regards to everything (Le. public restrooms, water fountains, separate seating on public accommodations, etc.) (28). This system became state-mandated segregation of which the highest court approved (29). At the same time the
Supreme Court handed down it decision in Plessy v. Ferguson (1896). The Plessy case dealt with a gentleman, Adolphus Plessy, who was arrested on June 7, 1892 for attempting to ride in the first-class coach reserved for white passengers. He was told to move, but he refused and was arrested because of his one-eighth African ancestry (29). Plessy's attorney, Albion Tourgee, argued the same argument that Sumner and Morris argued for Sarah Roberts which was that the Thirteenth and Fourteenth Amendments prohibited forced segregation (31). Justice Henry Billings Brown discarded the claim that the Thirteenth and Fourteenth Amendment prohibited segregation. He also rejected the argument that mandated segregation stigmatized blacks (31).

In the aftermath of Jim Crow and Plessy v. Ferguson the results of the two were essentially the same. The Courts permitted states to treat Afro-Americans separately as long as they received equal treatment (33). It was as if the United States overlooked the word If United" in our country's name. The courts decided the law of the land to allow two different races to be able to exist together while totally separate at the same time which is a complete paradox.

In 1909, the National Association for the Advancement of Colored People (NAACP) was formed. It was an interracial organization that wanted to challenge discrimination through campaigning for all rights of black people, specifically civil, economic and political rights. The NAACP would help those who had been discriminated against by taking on their case and having it tried in the courts. One example is the case of Lloyd Gaines. He was a graduate of lincoln University, Missouri's university for Negroes. He wanted to go to law school; however, the University of Missouri did not admit African Americans (63). Missouri law required Lincoln University to establish a law school if there was enough interest.- The state law also required that the state pay tuition for Missouri's black students enrolled in professional schools in neighboring states if lincoln University lacked the same program. Gaines brought suit which boiled down to the issue being the adequacy of the out-of state tuition scholarship. The Missouri Supreme Court found that the state's scholarship program satisfied the objections and there was adequate funding for the program (63). Gaines' case would continue on in the court system for quite a few years. While he waited, Gaines moved on with his life. He would work temporary jobs, receive a master's degree from the University of Michigan and move to Chicago. Then Gaines mysteriously disappeared. In 1939, his case ended because without him the NAACPcould not pursue the case any further (68). This case much like those before it would all playa monumental role in leading up to Brown v. Board of Education.

The Brown case originated in much the same way as the Roberts case. There were many plaintiffs in the case with the same complaint regarding the desegregation of schools. Once the case began there was no way of knowing the monumental proportions it would reach. Brown v. Board of Education was exceptional in explaining the history up to the case that ultimately
changed our nation's history forever. The authors went into great detail involving each justice, lawyer, and plaintiff dealing with the case.

It was, however, unfortunate that even after the Supreme Court ruled in Brown's favor that it took years to achieve integration in the school systems. The explanation of the relationship Brown had in regards to other racial issues was evaluated in brilliant fashion. The; book ends with a summary of how Brown impacted race relations and how America is still lacking in racial equality today.

My only criticism is that there are a few factual eras regarding the Governors name in Virginia, and some facts about school closings in Virginia.

As a graduate student in philosophy and history, I recommended this book for anyone interested in American history, civil rights era history.

Putting a landmark case in context.......2004-05-03

This book looks at the case of Brown vs. Board of Education that outlawed segregation in schools 50 years ago this month. The actual case only takes up several chapters in the middle of the book. What is important is that the book tries to put the case in terms of legal, and societal, context. Chapters leading up speak about the legal challenges to segregation that appeared in the 50 prior years since Plessy v. Ferguson enshrined the doctrine of "separate but equal" in our nation's laws. Because law is built upon precedence, these cases mark the stones on which the group of cases, eventually to be grouped under Brown, would stand. The authors take us inside the Supreme Court and helps analyze the decision making process, and examine the subsequent practices and pitfalls of the implementation of that decision. It is a case that even a half century later the repercussions are still felt in America.

This is not a scintillating read. The focus is on the law and the legal actions leading up to and after the decision. But it is an excellent book to put this event into legal context.

Good book, but does not focus on Brown v. Board of Education.......2004-03-07

When one sees the title "Brown v. Board of Education", it immediately stirs up notions of a Supreme Court case involving desegregation of public schools in America. Robert Cottol, Raymond Diamond, and Leland Ware have given us some of that feel, but not enough in this book.

The book, only 240+ pages to start with, does not even touch on the Brown case (or any of the six cases that collectively were referred to as "Brown") until page 119. The first half of the book is spent exploring the history of segregation in education and in America as a whole. I believe that this is an important topic, but not of enough importance to require half of a book that is supposed to be about this one Supreme Court case.

Aside from the fact that there is little in the book that deals with the case itself (besides the history of segregation in education, there is a substantial section of the book that deals with direct ramifications of ordered desegregation and the reactions of state and local governments to this order), the book is well written. I enjoyed reading the book, but I think that I would refer readers to a broader history of the Supreme Court and interventions in race relations, such as the new Klarman book "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality" instead of this book.

If, however, one is looking for a consice book that does indeed provide the story of segregation in American education, including the historic decision in 1954 that abolished that segregation, this is a great book to read and understand.

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