I had planned to call this book The Judicial Usurpation of Politics? The Fourteenth Amendment and the Supreme Court. (The reader will understand, by the end of chapter 1, why I thought the title apt.) But my editor at the Oxford University Press, Thomas LeBien, suggested that the title the book now bears was a better choice. (The reader will understand, by the end of chapter 2, why Thomas preferred the latter title.) I deferred to Thomas' judgment. But not without some anxiety: As a quick visit to amazon.com will confirm, numerous books, far more than I had imagined--some famous, some not so famous--bear "We the People" as part of their title if not as the whole of it. 1
I have focused, in this book as in most of my earlier constitutional writings, on the legitimacy vel non of certain aspects of the modern Supreme Court's Fourteenth Amendment workproduct. 2 My interest in this topic was greatly influenced by a seismic event over a quarter of a century ago, at the beginning of my final semester of law school: The Supreme Court's hugely controversial decisions, in January 1973, in the abortion cases, Roe v. Wade and Doe v. Bolton. (I discuss the cases in chapter 6). As this book reflects, my views have changed over the years. There are important continuities, but there are also important discontinuities. I am inclined to think that the latter dominate the former, though perhaps I'm not the best judge of that. For a superb study of the evolution of my constitutional jurisprudence, conjoined with insightful critical commentary, see Richard B. Saphire , "Originalism and the Importance of Constitutional Aspirations," Hastings Constitutional Law Quarterly 24:599-664 ( 1997). I am indebted to Rich Saphire not only for his generous attention to my past work, but also for his written comments on a draft of this book.
I am also grateful, for their written commentaries on all or part of this book, to several friends and colleagues or former colleagues: Kathy Abrams, Dan Conkle, Michael Curtis, Rick Kay, Pat Kelley, Gary Lawson, Beth Mertz, Wilson Parker, Dan Polsby, Steve Smith, and Ron Wright. A version of chapter 2 appeared as my contribution to Larry Alexander, ed., Constitutionalism: Philosophical Foundations ( 1998). I am grateful to the Cambridge University Press for permission to use that material here.
I am especially indebted, for their ongoing conversation with me, to Michael Curtis and Steve Smith. (Both of them disagree--sometimes strenuously--with some things I say in this book.) Michael Curtis is a wonderfully learned student of the history of the Fourteenth Amendment. His book No State Shall Abridge: The Fourteenth Amendment and the Billof Rights