The TEMPTING OF AMERICA | Robert H. Bork | Should be a required text in every school and before...

The TEMPTING OF AMERICA | Robert H. Bork | tempting america

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The TEMPTING OF AM...

	The TEMPTING OF AMERICA Robert H. Bork Free Press, 1997 - 448 pages average customer review:based on 30 reviews view larger image
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highly recommended

Judge Bork shares a personal account of the Senate Judiciary Committee's hearing on his nomination as well as his view on politics versus the law. 2 cassettes.

Should be a required text in every school and before voting

Every Americsan should read this book. It should be required in every government class at any level. Judge Bork demonstrates that he truly understand our Consitution and how it must stand as the rule by which government is limited and the power and freedom of the people maintained and protected.

The Tempting of America is simple enough for any literate adult to undertstand; legal expertise is not required. What may surprise many people is that he is against judicial activism by anyone--the left or the right. The Constitution is the people's contract with an elected government and it is up to the PEOPLE to change it, not a few black robes.

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tempting america

I didn't seriously study the U.S. Senate's refusal to approve Robert H. Bork's nomination to the Supreme Court, since I tended to take at face value the media's portrayal of him as a reactionary ill-suited for the court. But when an attorney friend suggested I read Bork's book, The Tempting of America: The Political Seduction of the Law (NY: The Free Press, c. 1990), I picked up a copy and found it illuminating. Finishing it shortly before the Clarence Thomas hearings, I found myself wondering (deja vue) at the scene. And I think I better understand some of the deep philosophical issues behind some of today's legal controversies.
The book addresses three distinct issues. First, Bork provides a 200 year overview, describing how the Supreme Court has become increasingly politicized, abandoning the more limited role assigned it by the Constitution. Second, he discusses some of the great legal theorists who have influenced American jurisprudence. Third, he tells his side of the Senate Judiciary Committee hearings which denied him a seat on the Supreme Court.
The historical-theoretical sections present Bork's strict constructionist stance. There's a story about Oliver Wendell Holmes and Learned Hand, two great judges, which illustrates a great divide in jurisprudence. After lunch together, Holmes got into his carriage; Hand, suddenly inspired, ran after him, saying, "Do justice, sir, do justice." Stopping the carriage, Holmes reproved his friend, saying: "That is not my job. It is my job to apply the law." Holmes' commitment to apply the law, not to dispense "justice," is the strict constructionism Bork endorses.
Apart from the Dred Scott decision, where Justice Taney first enunciated the now popular "substantive due process" notion which enabled him to impose his own opinions onto the Constitution, making a notoriously bad decision, the Supreme Court and leading theorists upheld the strict con¬structionist viewpoint for more than 100 years. At the beginning of this century, however, the tides of change flowed over the legal seashore. Notable, if isolated, judicial decisions, espec¬ially during the New Deal era, launched the currents of a tidal wave of revisionist judicial activism which surged with the Warren Court in the 1950s. Roe v. Wade illustrates revisionism at its worst, in Bork's opinion. From the beginning of this nation's history, the states had handled, through legislation, the abortion issue. When the U.S. Supreme Court, in 1973, issued its edict, it did so without "an argument that even remotely begins to justify" (p. 115) it along constitutional lines.
Such court decisions illustrate what's widely taught in the nation's law schools. No doubt selecting the most egregious example, Bork says: "Sanford Levinson, of the University Texas law school, advances an extremely skeptical, indeed nihilistic, theory of 'constitutional' interpretation. Levinson says that 'The "death of constitutionalism" may be the central even of our time, just as the "death of God" was that of the past century.' In a major law review article, Levinson explains that 'for a Nietzschean reader of constitutions, there is no point in searching for a code that will produce "truthful" or "correct" interpretations; instead, the interpreter, in [philosopher] Richard Rorty's words, "simply beats the text into a shape which will serve his own pur¬pose"'" (p. 217). Given his opposition to such revisionism, Bork encountered a steamroller of hostility when he appeared for his confirmation hearings. (Readers wearied by his theorizing in the book's first two sections could hardly fail to be aroused by his personal story.)
Ronald Reagan nominated Bork to the Supreme Court in 1987. No sooner was he nominated (45 minutes to be precise) than Senator Ted Kennedy launched an attack against him, claiming that "'Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters . . . and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy'" (p. 268). Speaking through senators such as Kennedy and Joe Biden, a chorus of special interest groups, the ACLU, NOW, Planned Parenthood, et al., mounted an anti-Bork crusade. If Bork fairly presents the facts in this book, and his documentation seems reasonably detailed and persuasive, the charges made against him were virtually all false, deliber¬ate lies employed to orchestrate the emotions of the masses.
For example, Gregory Peck, in an advertisement funded by People of the American Way, asserted Bork favored poll taxes and literacy tests, long used to bar blacks from voting in the South. In fact, Bork had never favored such. Ohio's Senator Metzenbaum loudly decried that the nation's women feared Bork, wresting out of context some decisions he had made as a federal judge. The Biden Report assailed Bork for his judicial errors--but without citing a single case as evidence! In Bork's opinion, this campaign against him resulted from the fact that he had dared to criticize the revisionist ideology which underlies significant decisions of the Warren and Berger courts. The fact that he finds Roe v. Wade judicially flawed ignited the flames of opposition to his appointment. No doubt some of this is self-serving special pleading. No doubt Bork, even in his de¬meanor during the hearings, looked like some kind of reactionary dinosaur. Still, I think he makes an important point: today's obsession with political correctness makes Supreme Court justice hearings an overly-politicized arena where senators and special interest groups secure a national pulpit for at least a passing moment.
Though George Will may overstate a bit, I think his assessment rings true: "This is Robert Bork's brilliant report from the front lines in an ongoing cultural war. At stake is nothing less than constitutional government. It is a sobering account of the extent to which judicial willfulness has degraded the elegant constitutional system we were given."

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Bork makes persuasive case

I was in law school around the time of Bork's confirmation hearings and I remember some of my professors arguing strenuously that Bork was an extreme conservative, outside of the mainstream, etc. It was until I read this book that I realized what a quality thinker Bork is, at least with respect to the topic of constitutional interpretation and the role of the judiciary in our democracy. He makes a very persuasive case for original understanding (although I do disagree with some of his specific interpretations -- flag burning comes to mind). The book is also interesting in terms of recounting the political struggle behind the scenes between conservative and liberal interest groups. All in all, the book is still highly relevant and should be read by anyone who wants to understand the proper role of the judicial branch of government. Paul Gehrman, Author, Kaleidoscope

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Bork's Retort

I read this book before I went to law school, and after finishing law school and practicing the law I wonder whether Bork actually believes what he wrote.

The book is really divided into two parts. One parts recounts the political fight between Bork and those who opposed him. Bork understandably has a lot of hard feelings for those who threw mud at him and sunk his nomination. This part has now become a standard theme among conservative writers in portraying a hysterical left sinking someone who is reasonable and happens to be ultra-conservative. There are a lot of Catholic motifs woven into the story of lefties burning Saint Robert at the stake.

The second part of the book describes Bork's central constitutional thesis of Original Understanding. Bork advocates Original Understanding as a way of avoiding having politics determining the interpretation of the Constitution. He points out that this is nothing new. Conservatives in the past used there own political beliefs to come to conclusions they agreed with. Now it is the New Left (which he cannot really understand what their ideological underpinnings really are except some vague notion of Equality) that is driving Constitutional interpretation to achieve political results they cannot obtain through the ballot box. Fair enough but after I finished law school its hard to imagine anyone really believing there is a neutral or correct way of interpreting the Constitution. How would we know if we found it? There is no way to verify any interpretation is the correct interpretation. This isn't an exact science. Since there is no way of verifying a correct interpretation, the natural (and probably unavoidable) way of interpreting the Constitution is in accord with one's political beliefs. Even Bork slips a few times in his book in revealing his own political beliefs, like his comment that the Commerce clause should have more limitations on federal power.

In the end, I come away from this book as not really a serious book about Constitutional interpretation but a political argument.

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reviews: page 1, 2, 3, 4, 5, 6

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