See, for example, Dennis v. United States, 341 US 494 (1951) (upholding convictions under the Smith Act, which banned certain activities of the Communist Party).
See Korematsu v. United States, 323 US 214 (1944).
See, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980).
I've overstated the security of the American judiciary. An incident with District Court Judge Harold Baer suggests continued insecurity, especially in the context of the war on drugs. Baer released a criminal defendant after suppressing a search that had discovered eighty pounds of narcotics; Don Van Natta Jr., 'Judge's Drug Ruling Likely to Stand,' New York Times, January 28, 1996, 27. The decision was then attacked by presidential candidate Robert Dole, who called for Baer's impeachment; Katharine Q. Seelye, 'A Get Tough Message at California's Death Row,' New York Times, March 24, 1996, 29. President Clinton then joined the bandwagon, suggesting that he might ask for Baer's resignation if Baer did not reverse his decision; Alison Mitchell, 'Clinton Pressing Judge to Relent,' New York Times, March 22, 1996, 1. Baer then did reverse his decision; Don Van Natta Jr., 'Under Pressure, Federal Judge Reverses Decision in Drug Case,' New York Times, April 2, 1996, 1. Chief Judge Jon Newman, of the Second Circuit Court of Appeals, along with other judges, then criticized Dole's criticism of Baer, arguing that he went 'too far'; Don Van Natta Jr., 'Judges Defend a Colleague from Attacks,' New York Times, March 29, 1996, B1.
I describe the Court's conception of its role in more detail in Lessig, 'Translating Fed eralism.'
Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978), 83.
See, for example, Felix Frankfurter, The Commerce Clause Under Marshall, Taney, and Waite (Chapel Hill: University of North Carolina Press, 1937), 82.
The relationship between a contested ground and a political judgment is more com plex than this suggests. I discuss it more extensively in Lawrence Lessig, 'Fidelity and Constraint,' Fordham Law Review 65 (1997): 1365.
ACLU v. Reno, 929 FSupp 824 (EDPa 1996); Shea v. Reno, 930 FSupp 916 (SDNY 1996).
I discuss this in Lessig, 'Fidelity and Constraint.'
One could well argue that during the crisis of the Depression deference by the Court to the Congress would have been well advised; see, for example, Sunstein, Democracy and the Problem of Free Speech, 39.
For the clearest statement of a contrary position, see Charles Fried, 'Book Review: Per fect Freedom or Perfect Control?,' Harvard Law Review 114 (2000): 606.
Fischer (Albion's Seed) shows how town planning in the United States followed habits in Europe.
David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: Univer sity of Chicago Press, 1994), 182–87. See also Dawn C. Nunziato, 'The Death of the Public Forum in Cyberspace,' Berkeley Technology Law Journal 20 (2005): 1115, 1170 n.2 (describing first amendment review of anti-dilution law).
