No Litmus Test

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University School of Law. He is the editor of Constitutional Law Stories (2004) and coauthor, with Laurence H. Tribe, of On Reading the Constitution (1991). He clerked for U.S. Supreme Court Justice Anthony M. Kennedy (1991-1992) and Judge Stephen Reinhardt of U.S. Court of Appeals for the Ninth Circuit (1990-1991).

• Chapter 1 Acknowledgements Chapter 2 About the Author Chapter 3 Introduction Part 4 I. The Difference Between Law and Politics Chapter 5 1. They Are All Activists Now Chapter 6 2. Is There a Distinction Between Law and Politics? Yes, and the Bush v. Gore Decision Proves It Chapter 7 3. Clarence Thomas's Challenge to the Rehnquist Court's Vision of Representative Government Chapter 8 4. Does Federal Tort Law Reform Unduly Infringe State Sovereignty? Part 9 II. Aid and Comfort to the Enemy Chapter 10 5. The Supreme Court Case That Pits Free Speech Against Church-State Separation Chapter 11 6. How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses Chapter 12 Why the Lawsuit Challenging Tennessee's "Choose Life" License Places Should Fail Chapter 13 Three Bad Reasons — and One Very Good Reason — to Oppose a Constitutional Amendment Barring Same-Sex Marriage Chapter 14 A Federal Appeals Court Rules That Universities Can Bar Military Recruiters Without Losing Federal Grant Money: A Welcome Result Based on Flawed Reasoning Chapter 15 10. Justice Scalia's Persuasive but Elitist Response to the Duck Hunting Controversy Chapter 16 11. Can a State Make It a Crime to Refuse to Identify Yourself to the Police? In a Narrow Ruling, the Supreme Court Says Yes Chapter 17 12. Why "Swift Boat Veterans for Truth" and other "527" Organizations Can't Be Silenced Chapter 18 13. Does the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, No Chapter 19 14. How the Schiavo Federal Court Case Might Have Been Won Part 20 III. In Defense of Liberal Judging Chapter 21 15. Washington Yankees in King Arthur's Court: The Supreme Court Journeys to 18th Century England to Define the Rights of 21st Century Americans Chapter 22 16. How a Recent Supreme Court Public Housing Decision "Exiles Compassion from the Province of Judging" Chapter 23 17. Could Justice Scalia's Affirmative Action Dissent Become Self-Fulfilling Prophecy? Chapter 24 18. Is There a Constitutional Right to Sexual Privacy? Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition Part 25 IV. Liberty, Security, and War Chapter 26 19. What is an "Unlawful Combatant," and Why It Matters: The Status of Detained al Qaeda and Taliban Fighters Chapter 27 20. The Justice Department's Change of Heart Regarding Torture: A Fair-Minded and Praiseworthy Analysis That Could Have Gone Still Further Chapter 28 21. Who Decides Whether Yaser Hamdi, or Any Other Citizen, Is an Enemy Combatant? Chapter 29 22. Bush Loses in the Supreme Court and America Wins Chapter 30 23. Is Iraq in "Material Breach" of its Obligations under the U.N. Resolution? A Geopolitical Question, Not Simply a Legal One Chapter 31 24. Is the War on Iraq Lawful? Chapter 32 25. Why Congressional Power to Declare War Does Not Provide an Effective Check on the President Chapter 33 26. Kerry Stands By His Iraq Vote, and with Bush, Against Constitutional Principles Part 34 V. The Global Village Chapter 35 27. When American States Execute Citizens of Foreign Countries: The Case of Gerardo Valdez Chapter 36 28. Can One National Arrest the Foreign Minister of Another? The World Court Says No Chapter 37 29. Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates? Surprisingly, the Answer May Be Yes Chapter 38 30. The Hidden International Influence in the Supreme Court Decision Barring Executions of the Mentally Retarded Chapter 39 31. The Use of Foreign Law in American Constitutional Interpretation: A Revealing Colloquy Between Justices Scalia and Breyer Chapter 40 32. Can Ethnic Hatred Be Eliminated by Eliminating Ethnicity? The Rwanda Experiment Chapter 41 33. What a Chinese Height Discrimination Case Says About Chinese (and American) Constitutional Law Part 42 The Rule of Law(yers) Chapter 43 34. Debate over an ABA Legal Ethics Rule Underscores Lawyers' Competing Obligations to Keep Secret and to Disclose Chapter 44 35. Can the Legal Profession Improve its Image? Americans Believe Lawyers to Be Necessary but Dishonest, Survey Finds Chapter 45 36. Americans' Faith in the Supreme Court — And in the Constitution: Survey Shows Bush v. Gore's Effect was Limited Chapter 46 37. Whose Constitution Is it Anyway? What Americans Don't Know About the Constitution — And Why It Matters Chapter 47 38. Unsolicited Advice to Law School Applicants: With Prospects Newly Limited, Be Sure You Want to Become a Lawyer Chapter 48 39. How to "Think Like a Lawyer": Advice to New and Prospective Law Students Chapter 49 Appendix Chapter 50 Bibliographical Note Chapter 51 Index

Written to be accessible to the intelligent layman while broadening even the seasoned expert's understanding, Michael Dorf's colorful, creative and invariably clear analyses of the most vexing constitutional controversies of our time add up to a compelling case for an approach to law and to judging that rejects the extremes of both right and left — and emerges with a position more reasonable and reasoned than either and both more interesting, and more surprising, than a simple average of the two.