"An indispensable and provocative guide through the thicket of today's most challenging constitutional controversies by some of the most eminent judges of their time. It offers an invaluable peek behind the curtain of judicial decision making."-David Cole, Professor of Law, Georgetown University The EmbattledConstitution presents thefourth collection of the James Madison lectures delivered at the NYU School ofLaw, offering thoughtful examinations of an array of topics on civil libertiesby a distinguished group of federal judges, including Justice Stephen Breyer ofthe U.S. Supreme Court. The result is a fascinating look into the minds of thejudges who interpret, apply, and give meaning to our "embattled Constitution." In these insightfuland incisive essays, the authors bring to bear decades of experience to explorewide-ranging issues. Are today's public schools racially segregated? To whatextent can the federal courts apply the Bill of Rights without legislativeguidance? And what are the criteria for the highest standards of judging and constitutionalinterpretation? The authors also discuss how and why the Constitution came tobe embattled, shining a spotlight on the current polarization in both theSupreme Court and the American body politic and offering careful and informedanalysis of how to bridge these divides. Contributors includeMarsha S. Berzon, Michael Boudin, Stephen Breyer, Guido Calabresi, Robert H.Henry, Robert Katzmann, Pierre N. Leval, M. Blane Michael, Davis S. Tatel, J.Harvie Wilkinson, III, and Diane P. Wood.
ContentsAcknowledgments ixIntroduction 1Norman Dorsen1 Our Democratic Constitution 7Stephen Breyer2 Federal and State Courts: Restoring a Workable Balance 37Guido Calabresi3 Judicial Methodology, Southern School Desegregation, 55and the Rule of LawDavid S. Tatel4 Our Eighteenth-Century Constitution 107in the Twenty-First-Century WorldDiane P. Wood5 Judging under the Constitution: Dicta about Dictum 139Pierre N. Leval6 Judge Henry Friendly and the Mirror of Constitutional Law 169Michael Boudin7 Toward One America: A Vision in Law 193J. Harvie Wilkinson III8 Securing Fragile Foundations: Affirmative 207Constitutional Adjudication in Federal CourtsMarsha S. Berzonviii << contents9 Reading the Fourth Amendment: Guidance 245from the Mischief That Gave It BirthM. Blane Michael10 Living Our Traditions 273Robert H. Henry11 Statutes 297Robert A. KatzmannAbout the Contributors 357About the Editors 359Index 361
