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Overruled: The Long War for Control of the U.S. Supreme Court Hardcover – November 4, 2014


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Editorial Reviews

Review

"Confident, competent telling. In particular, [Root] powerfully illustrates that Holmes, Brandeis and Frankfurter--the most overrated justices in our history--had not the foggiest notion of the Constitution."--The Wall Street Journal

"An impressive account... Root's work is a valuable guide to both the past and the potential future of these important issues."--The Washington Post

"Must-read."--Senator Rand Paul

"Historically rich and elegantly written."--National Review

"Superb.... [Overruled] accurately and candidly describes a fissure that has indeed, as Damon says, defined American law over the past century."--Jeffrey Rosen, President of the National Constitution Center and Legal Affairs Editor at The New Republic

"The conflict between judicial activism and judicial restraint has been part of the Supreme Court since its inception. In this book, Root, senior editor at Reason magazine, takes a fresh look at activism vs. restraint by placing judicial interpretation at the center of the ideological disagreements between libertarians and conservatives that have taken place throughout U.S. history.... The segments about gun control and the Affordable Care Act are especially compelling."--Library Journal
"[A] valuable new book."--The Huffington Post

"A sober, well-researched, and thoughtful case for the libertarian point of view on judicial issues ranging from gun control to economic regulation."--The Washington Monthly

"What makes the book especially interesting is its delineation of important conflicts between mainstream political conservatives, who emphasize 'judicial restraint' and the Court's deference to 'majority rule,' and contemporary libertarians who embrace a far more 'engaged' role for the judiciary that is highly critical of submission to legislatures and the statutes they pass."--The History Book Club

“Damon Root…traces the differences between judicial conservatives and libertarians, and advances the libertarians’ cause… Overruled is a sober, well-researched, and thoughtful case for the libertarian point of view on judicial issues.” —Washington Monthly

“…The most thorough account of the libertarian-conservative debate over judicial review…a valuable guide to both the past and the potential future of these important issues.” —The Washington Post


“Confident, competent telling. In particular, [Root] powerfully illustrates that Holmes, Brandeis and Frankfurter—the most overrated justices in our history—had not the foggiest notion of the Constitution.”—Wall Street Journal

"An intriguing account of judicial and economic policy reflecting controversies within conservatism over civil rights and other issues."—Kirkus Reviews

“In Overruled, Damon Root explains a divide in judicial theory about which I was not only ignorant but mistaken. ‘Judicial activism’ is wrong.  Right? It gives unelected authorities minority power to impose rules and regulations that violate individual rights without a democratic process. Wrong. It’s ‘judicial deference’ that gives elected authorities majority power to impose rules and regulations that violate individual rights within a democratic process. And to further confuse the issue judicial activism and judicial deference have, by turns, been the darlings of both Liberals and Conservatives.  Fortunately, Damon Root explains it all.” —P. J. O’Rourke, journalist and H. L. Mencken Research Fellow at the Cato Institute

"A riveting account of the raging debate over the future of our Constitution between those who contend that judges must ‘defer’ to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers. Root reveals the inside story behind the surging movement to restore constitutionally-limited government. I loved this book." —Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director, Georgetown Center for the Constitution

“Damon Root, whom I have had the pleasure of interrogating on television, understands the concept of personal liberty in a free society better than many members of the legal profession; and he knows, too, that the Constitution was written by men who properly feared the numerous insidious ways that government assaults our natural rights. In Overruled, he shares his knowledge and uncanny ability to explain liberty lost with his readers. This book is nothing short of a lucid and brilliantly crafted history of the Framers’ fears coming to pass at the hands of a judiciary faithless to first principles. Read it today so you can anticipate and understand the judicial contortions coming tomorrow.”—Hon. Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel, Distinguished Visiting Professor of Constitutional Jurisprudence, Brooklyn Law School

“I not only learned a lot from Damon Root’s rich and compelling analysis of the clash between the warring legal traditions but was thoroughly entertained along the way. Exploring the full sweep of American history, Root describes a division that not only transcends left and right but is now threatening to lead to a public showdown between conservatives and those who emphasize the protection of individual liberty.”—David T. Beito, professor of history at the University of Alabama and co-author of Black Maverick: T.R.M. Howard’s Fight for Civil Rights and Economic Power

About the Author

Damon Root is a senior editor at Reason magazine and Reason.com. In 2012 he spearheaded Reason’s multi-platform coverage of the legal challenge to President Obama’s health care law. He has been featured on the Fox Business Channel, Sirius Satellite Radio, the 92nd Street Y’s “Campaign for the American Conversation,” and numerous radio stations around the country.

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Product Details

  • Hardcover: 288 pages
  • Publisher: Palgrave Macmillan Trade (November 4, 2014)
  • Language: English
  • ISBN-10: 1137279230
  • ISBN-13: 978-1137279231
  • Product Dimensions: 6.5 x 1.1 x 9.5 inches
  • Shipping Weight: 1.7 pounds (View shipping rates and policies)
  • Average Customer Review: 4.8 out of 5 stars  See all reviews (16 customer reviews)
  • Amazon Best Sellers Rank: #86,342 in Books (See Top 100 in Books)

More About the Author

Damon Root is the author of Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan). He is a senior editor at Reason magazine and the winner of the 2011 R.C. Hoiles Prize for Journalism. His writing has appeared in the New York Post, New York Daily News, Chicago Sun-Times, Washington Times, WallStreetJournal.com, New York Press, and other publications. Root has been featured on C-SPAN's Book TV, the Fox Business Channel, New York Public Radio, Sirius Satellite Radio, the 92nd Street Y's "Campaign for the American Conversation," and numerous radio stations around the country.

Customer Reviews

4.8 out of 5 stars
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Most Helpful Customer Reviews

Format: Hardcover
It’s unfortunate that Michael Lynn Sr, in his otherwise laudatory review of Damon Root’s Overruled, has mischaracterized important aspects of the book and, more broadly, of libertarianism—much less used the occasion to vent his own political views. To his credit, he rightly commends Root’s lucid discussions of often complex Supreme Court decisions. The reader will learn much from that aspect of the book alone. And Lynn gets the main theme of the book right as well: Root’s focus is on judicial review, the proper role of the courts in our system of government, and how the courts have addressed that question over the years, starting with the struggle over slavery and culminating with the battle in recent years between liberals, conservatives, and libertarians over “originalism.”

But Lynn’s “caveat,” that Root works for Reason magazine and therefore writes from a libertarian perspective, is neither here nor there regarding the quality of the book. Nor is it accurate to say that “Libertarian ideology is, in a nutshell, that government regulation infringes on personal freedom. Its corollary is that the reduction or elimination of regulation, ipso facto, increases personal freedom.” Obviously, many regulations do infringe on personal freedom, but many others—concerning nuisance and risk, for example—enhance freedom and therefore, if reasonable, are supported by libertarians.

Indeed, the very examples Lynn invokes illustrate how legal principles, far from restricting freedom, in fact enhance it. Corporate personhood has a long and well established legal pedigree; it enables individuals the freedom to separate capital and management, and that in turn encourages the investment over time that has enhanced the freedom of all of us, doubtless Lynn included.
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15 of 16 people found the following review helpful By Ronald H. Clark VINE VOICE on December 15, 2014
Format: Hardcover Verified Purchase
I am always pleased to see books for the general reader that undertake to explain some facet of the Supreme Court, since the Court remains a mystery to many (much like the fourth or administrative branch of the federal government). This book focuses upon one very important dimension of the Court, the philosophy of judicial restraint or deference to Congressional policy, and to contrast it with judicial activism. The author is a Senior Editor at "Reason" magazine, an important voice for libertarians who value individual liberty above all, seek to maximize autonomy and freedom of choice. Sometimes libertarians take positions identical with conservative; in other instances (as this book well illustrates) the two philosophies come into conflict.

The author covers a wide range of issues as he dissects l(and rejects) judicial restraint as a controlling judicial principle. While I found the individual chapters to be solid, my concern is that they did not flow together smoothly in developing an argument. There is one area, I will mention later, where it all does come together very well and where I believe the book makes a major contribution.

The author begins with a general discussion on judicial restraint, basically targeting Justice Holmes as the major progenitor of the concept. He also includes a good discussion of Justice Field, the genesis of the 14th amendment, and the much criticized "Slaughterhouse" decision in which the Court emasculated the "privileges and immunities" clause of the amendment. With this clause nullified, the Court was free to employ a judicial restraint viewpoint, which allowed government regulation to expand and individual liberty to contract (e.g., the "Munn" doctrine).
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Format: Hardcover
For non-attorneys such as I who have a keen interest in the interdependence of the executive, legislative, and judicial branches of the federal government throughout U.S. history, Damon Root's focus is on one very important dimension of the Court: the philosophy of judicial restraint or deference to Congressional policy, in contrast with judicial activism. Two key mindsets are those of Libertarians ("minimum government, maximum freedom") and Conservatives (strict compliance with the Constitution and Bill of Rights. Articles of faith are based on principles within the process of jurisprudence and opinions are divided -- sometimes sharply divided - about which are more worthy, and, in some instances, the most significant disagreements are ultimately resolved by the Supreme Court.

Officially, the Revolutionary War ended when the Treaty of Paris was signed in Paris by representatives of King George III of Great Britain and representatives of the United States of America on 3 September 1783. However, as Andrew Schocket explains in his recently published book, Fighting over the Founders: How We Remember the American Revolution, there have been disagreements -- sometimes severe disagreements -- about various issues. For example, "One of the debates for which we conscript the founders is whether the United States is a national of individuals or a national community. It comes up when we talk about guns, or health care, or speech, or the Internet and in many other arenas. Of course, we are both individuals and community members." If a new nation remains a work in progress, can the same be said of its constitution with amendments? Must a civil war be fought to preserve the union? In that event, why were so many men and all women denied the right to vote until well into the twentieth century?
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