Narrowing the Nation's Power: The Supreme Court Sides with the States,
University of California Press: 2003
By John T. Noonan
A Senior (Judge) Moment… (2 Stars)
This book comes as a disappointment. Prior to reading of Narrowing the Nation's Power, I had perused several reviews of it—some praising it and some panning it—and I was actually expecting to really enjoy the book and agree with all of its arguments. Unfortunately, I found myself underwhelmed after reading it.
The problem here is not that Senior Judge John Noonan lacks a great intellect—he is an experienced and respected academic and jurist. Nor is Judge Noonan a bad writer. I had read his book on “masks” the month before this work, and thoroughly enjoyed Judge Noonan’s scholarship and insights.
The problem with Judge Noonan’s book is that it is a lost opportunity. There ARE some very legitimate criticisms to be made of the U.S. Supreme Court’s state sovereign immunity jurisprudence. Likewise, serious issues abound concerning the Supreme Court’s claim to judicial supremacy as well as its employment of “balancing tests” in Section 5 (14th Amendment) cases, and in other cases. However, many of Judge Noonan’s better points and critiques in these matters are obscured and lost by his incessant railing against the motives and hidden agendas of the justices with whom he disagrees.
Judge Noonan is to be praised for correctly noting that: “To make ‘federalism’ a slogan for states’ rights is to contort the original meaning and to suppress the national component in the original design.” Yet, rather than relying upon solid textual and case law grounds in critiquing the state sovereign immunity and Section 5 subsets of the “New Federalism,” Judge Noonan quotes the pre-amble of the Constitution and states that it is his “endeavor” to “lay them as criteria alongside the facts of particular cases and to ask if the results of these cases can be squared with the announced purposes of our constitution.” He then employs the abstractions of the pre-amble to critique the views of justices with whom he disagrees while accusing those same justices of using the abstractions of federalism in their opinions. In so doing he ignores the important question of whether it is just for a governing authority to exceed its lawful limits.
The Section 5 cases receiving much of Judge Noonan’s attention are Smith and Borne. I found it interesting, in the least, that Judge Noonan, the attacked the Supreme Court for its respect for the Mormon polygamy cases of the 19th Century. He dismissed them all in a simplistic fashion as discriminatory, when there are more complex issues at stake in those cases.
Of course, Judge Noonan is correct in criticizing the Supreme Court for calling Section 1 of 14th Amendment is “self-executing.” For in so doing, the Supreme Court gives itself a monopoly over creating and defining the parameters of rights and determining their applicability in specific instances. And the Supreme Court has made use of its monopoly with a new test in Section 5 cases: “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Judge Noonan rightly criticizes the Supreme Court for adopting that test and for its use of special inspections of the congressional record for convincing evidence of the evils being legislated against, as mechanisms to second-guess the Congress and underme its duty under the Constitution.
The book takes a rather strange twist in Chapters 2 and 3, with Judge Noonan writing in the third person. Although somewhat distracting, he does manage to convey the mess that is the Ex Parte Young doctrine, with all its unpredictable and contradictory exceptions and exceptions to the exceptions’ exceptions.
Since I do not at this stage of my legal career and education have a thorough understanding of patents and trademarks, I do not have any comments on Chapter 4, which deals with those subjects.
Judge Noonan’s chapter on the Violence Against Women Act and the Commerce Clause is rather embarrassing, for he again employs attacks on the motives of the justices with whom he disagrees and gives the other justices a pass on problems in their own opinions (thereby seemingly accepting “process federalism.) Again, another blown opportunity, because there are some points to be made that that act could pass muster under the Commerce Clause in conjunction with the Necessary and Proper Clause.
This work is not without good insight and points, but those really have to be picked out from amongst all of the other, overly-simplistic and unfair charges that Judge Noonan makes.
ADDITIONAL THOUGHTS: A highly respected jurist I spoke with communicated sentiments about this book similar to mine, when discussing this book. It's too bad to write a reveiw like this, but that's the way it goes.
(Downtown Seattle, WA)