"A Country I Do Not Recognize: The Legal Assault on American Values" by Robert H. Bork. During the past forty years, activists have repeatedly used the court system to achieve social and political change. On both the domestic and international fronts, they have accomplished substantive policy results that could not otherwise be obtained through the ordinary political processes of government both in the United States and abroad. In five insightful essays, the contributors to this volume show how these legal decisions have seriously undermined America's sovereignty and values.
"Separation of Church and State" by Philip Hamburger (Harvard University, 2002). What Mr. Wolfe does regarding the excesses of judicial activism in general, Mr. Hamburger does for the many distortions of the Establishment Clause of the First Amendment. He devastates Jefferson's notion of a "wall of separation" between religion and government, demonstrating that such a notion was utterly idiosyncratic at the time. Strict separation was revived by anti-Catholics in the 19th century and picked up by the court in the 20th, a development for which Justice Hugo Black bore much responsibility. The modern era of judicial hostility to organized religion and its symbols in the public square is directly contrary to what the Framers meant when they prohibited the establishment of religion. Though Mr. Hamburger does not trace the damage done by preposterous decisions in recent decades, this is a marvelous book.
"The Rise of Modern Judicial Review" by Christopher Wolfe (Basic Books, 1986). Christopher Wolfe addresses a transformation in constitutional law that "The Federalist" and Joseph Story could not have foreseen and that Alexander Bickel, despite his attempt to justify a modest non-originalism, deplored. The book traces judicial supremacy from its early "moderate traditional form" to the modern era, in which many judges think that the historic Constitution "does not contain sufficient constitutional (judicially enforceable) protection for liberty and equality," thus requiring them to revise and even overrule the Framers' intentions. Mr. Wolfe's critique of the court and the academic defenders of its activism defies easy summation precisely because of its comprehensiveness, erudition and analytical rigor.
"The Least Dangerous Branch" by Alexander M. Bickel (Bobbs-Merrill, 1962). Alexander Bickel attempted to resolve the central problem of constitutional law: Our political ethos is majoritarian, but the court, possessing the power to nullify laws democratically enacted, is countermajoritarian. The problem becomes acute when the court imposes principles not to be found in the Constitution. Mr. Bickel justified that role by saying that courts should apply principles drawn from the "evolving morality of our tradition." Written gracefully and offering many insights into constitutional doctrines, this book is the most intellectually honest, if unsuccessful, defense of non-originalism
"Commentaries on the Constitution of the United States" by Joseph Story (Hillard, Gray & Co., 1833). Joseph Story, who produced this work while he was both a justice of the Supreme Court and a professor of law at Harvard, plainly lays out what the Constitution meant to the generation after the Founding. Story rejected the judicial activism advocated by some in his time: "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation." He offered rules of interpretation to avoid giving the Constitution "an extent and elasticity, subversive of all rational boundaries." The modern Supreme Court has nonetheless assigned to the Constitution an elasticity that is stretching it to as yet unknown dimensions.
"The Federalist" by Alexander Hamilton, James Madison and John Jay. Written to promote the ratification of the proposed Constitution, this series of New York newspaper essays in fact had little effect on the outcome. They are, nonetheless, invaluable evidence of what leading proponents expected to be the operation and benefits of the new government as well as statements of the principles of republican government. Madison's essays, in particular, on the Union's "tendency to break and control the violence of faction" while preserving liberty are classics of American political thought. Alas, the authors failed to anticipate the political power that a judiciary entrusted with the Constitution would seize.
"Common Sense" by Thomas Paine Published in 1776, Common Sense challenged the authority of the British government and the royal monarchy. The plain language that Paine used spoke to the common people of America and was the first work to openly ask for independence from Great Britain.