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8. 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).
9. See Korematsu v. United States, 323 US 214 (1944).
10. See, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review
(Cambridge, Mass.: Harvard University Press, 1980).
11. Ive 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., Judges 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 Baers impeachment; Katharine Q. Seelye, A Get Tough Message at Californias Death
Row, New York Times, March 24, 1996, 29. President Clinton then joined the bandwagon, suggesting that he might ask for Baers 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 Doles 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.
12. I describe the Courts conception of its role in more detail in Lessig, Translating Federalism.
13. Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic
Books, 1978), 83.
14. See, for example, Felix Frankfurter, The Commerce Clause Under Marshall, Taney, and
Waite (Chapel Hill: University of North Carolina Press, 1937), 82.
15. The relationship between a contested ground and a political judgment is more complex than this suggests. I discuss it more extensively in Lawrence Lessig, Fidelity and Constraint, Fordham Law Review 65 (1997): 1365.
16. ACLU v. Reno, 929 FSupp 824 (EDPa 1996); Shea v. Reno, 930 FSupp 916 (SDNY
1996).
17. I discuss this in Lessig, Fidelity and Constraint.
18. 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.
19. For the clearest statement of a contrary position, see Charles Fried, Book Review: Perfect Freedom or Perfect Control?, Harvard Law Review 114 (2000): 606.
20. Fischer (Albions Seed) shows how town planning in the United States followed habits
in Europe.
21. David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press, 1994), 18287. 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).
22. Charles Fried, Book Review: Perfect Freedom or Perfect Control?, Harvard Law
Review 114 (2000): 606.
23. Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of
Applying Constitutional Norms to Private Regulation, University of Colorado Law Review 71
(2000): 1263, 1269.
24. A. Michael Froomkin, The Collision of Trademarks, Domain Names, and Due Process
in Cyberspace, Communications of the ACM 44 (2001): 91. See also Jonathan Weinberg,
ICANN and the Problem of Legitimacy, Duke Law Journal 50 (2000): 187.