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The Tempting of America
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.In The Tempting of America, one of our most distinguished legal minds offers a brilliant argument for the wisdom and necessity of interpreting the Constitution according to the “original understanding” of the Framers and the people for whom it was written. Widely hailed as the most important critique of the nation’s intellectual climate since The Closing of the American Mind, The Tempting of America illuminates the history of the Supreme Court and the underlying meaning of constitutional controversy. Essential to understanding the relationship between values and the law, it concludes with a personal account of Judge Bork’s chillingly emblematic experiences during the Senate Judiciary Committee’s hearing on his Supreme Court nomination.
450 pages, Kindle Edition
First published January 1, 1990
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About the author
Robert H. Bork
214 books42 followersRobert Heron Bork was an American legal scholar who advocated the judicial philosophy of originalism. Bork served as a Yale Law School professor, Solicitor General, Acting Attorney General, and a judge of the United States Court of Appeals for the District of Columbia Circuit. In 1987, he was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected his nomination. Bork had more success as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject.
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March 3, 2012
The development, over a period of thousands of years, of democracy --the idea that the people of a nation should ultimately rule themselves through laws made by elected representatives responsible to them-- has to rank as one of the major achievements of Western civilization. It's closely related to a second major Western achievement: the concept of the rule of law, the idea that law is binding on everybody and that the powerful can't simply ignore or defy it whenever they want to. And since the early days of the Roman republic, when the plebians demanded that the laws be written and posted for ALL to read, rather than kept as an oral tradition under the dubious guardianship of the patricians, law has come to mean written law, with the basic assumption that written language can and does communicate objective meaning, and that the literate are capable of understanding it through reading. Most of these achievements and assumptions faced bitter opposition throughout their history, and all of them face powerful opposition today. In the present-day U.S., a key battleground in this ancient conflict is the so-called "original intent" vs. "living Constitution" controversy, which centers on the basic question of whether written law is binding on those who wield power (especially judicial power), or whether they can and should reinterpret it as anything whatsoever that they want it to be.
Before reading this book (which is aptly subtitled "The Political Seduction of the Law"), I was already pretty familiar with this background and with the particular wrinkles it's assumed in modern U.S. legal culture, mostly from reading in periodical sources over the years. I read this book to compare it with the views I'd already formed on the subject, as well as to possibly learn something new. Since the book I'm currently reading basically deals with matters of law (and of abuse of judicial power), I thought it might be a good time to go back and retrospectively review this one as well.
A former Yale law professor, U.S. Solicitor General and Federal judge, author Bork is of course well-known (to those who follow public affairs) for his rejected nomination to the Supreme Court during the Reagan administration. He's a serious thinker on constitutional law and legal policy (more serious than most of the senators who voted against his nomination), and an articulate expositor of the view that the Constitution and statute law have objective, discernible meaning which is binding on judges to enforce, regardless of their personal views and policy preferences. Here, after a short introduction that summarizes this view and its significance in the modern U.S. context, he divides the main body of the book into three parts.
First, he presents a history of U.S. Supreme Court constitutional jurisprudence (up to 1990, when this book was written), going back to its earliest beginnings, which demonstrates that, although today the idea is more aggressively and openly embraced and defended, the practice of justices reading their own political preferences into the Constitution and law with no actual basis in the text of either is nothing new. And though Bork is a hated boogeyman for the Left, he makes it clear that this practice has historically also --and just as illegitimately-- been a common one in the service of "conservative" agendas (or, at least, oligarchic and elitist agendas wrapped in "conservative" rhetoric), such as the defense of slavery and the striking down of economic regulations. He pays particular attention to the brainchild of Chief Justice Taney, the theory of "substantive due process," (as opposed to real due process), under which not only must the administrative procedures of the law be fair, but the substance of the law itself must conform to the judge's personal view of fairness. (Taney, for instance, felt that legal prohibition of slavery was "unfair" to slave owners.) In the second part, he summarizes and rebuts the major contemporary legal theories that purport to justify judicial departure from the written text of the law, and to explain what "authority," if any, should be put in its place. This is probably the driest section of the book, and the hardest even for educated non-lawyer readers to understand. My impression is that here the Yale professor in him sort of takes over, and that he's writing this for lawyers and law students in a milieu where all of these theories are to be taken seriously, and failure to adequately address one of them opens you to the charge of being an intellectual lightweight. By the time he's done, that's not a charge his critics can throw at him (at least, not fairly), but it may leave most readers a bit glassy-eyed. Finally, the third part is a first-hand account of his confirmation battle, in which battle lines were drawn in an openly-politicized process that was frankly about what political agendas he would or wouldn't serve on the court (rather than about his fitness to impartially apply the law as it's written), and what that presages for future Supreme Court nominations. One of the most important parts of the book may be the appendix --the text of the U.S. Constitution and its amendments, which even most educated Americans have never read, and about which most are totally clueless.
I didn't go a full five stars in my rating here, because I think there are areas where he could have made his case better and more clearly for ordinary readers. One point that's not sufficiently stressed, IMO (though he mentions it) is that the Constitution itself does provide a procedure by which it CAN be changed to address new conditions and realities, so that the only alternative to a "constitution" made out of silly-putty in the hands of an unelected clerisy of judges isn't, as we're constantly told by the media, a hopelessly outdated document that can never be changed --rather, it's democratically enacted change by the people's representatives, requiring a process and a high degree of consensus that guarantees that changes aren't made frivolously. A second point that's not addressed is the role of postmodernism as the genesis of a lot of the current assault on the written Constitution, with its glorification of total subjectivism and its solipsistic denial that language can have any shared meaning between any two people. (That more basic discussion could have productively replaced the part on the different permutations of "living Constitution" theory, since it underlies all of them.) Related to the question of language and its meaning, there is a long-standing legal doctrine that when legal language is claimed to actually be ambiguous, a court is obliged to construe it in the way that a hypothetical "reasonable person" would. This test would eliminate a vast amount of judicial contortions of the English language, but Bork doesn't discuss it here. I could raise other quibbles, and occasional disagreements, as well. But in the main, this is a very solid discussion of a crucially important subject, and one that I think most readers could learn from. Despite the dense subject matter of some of it, it's mostly accessible reading, presented with good humor and a lot of genuine wit (Bork must have been popular as a lecturer, at least with students who didn't automatically hate him for his beliefs).
One final note is worth mentioning here. Bork doesn't discuss this in the book, but one of the main arguments of people who demonize him is based on the fact that during the Watergate crisis, after Attorney General Eliot Richardson and his deputy had resigned rather than obey Nixon's order to fire Archibald Cox, the special prosecutor, it fell to Bork as the number three official in the department to do it --proof positive, say the demonizers, that he was a willing accomplice of the crook Nixon. The truth of the matter, as I learned years ago from reading accounts of the matter more detailed than the sound bites, was that Bork was as disgusted as the other two and wanted to resign also. He was prevailed upon by Richardson not to, on the grounds that if he did "there would be no Justice Department" left; and having accepted the felt 'duty" of staying on, he reluctantly carried out Nixon's order, under protest. One might argue that he should have resigned, no matter what Richardson thought that would do to the department. (In his shoes, I probably would have.) Nevertheless, this does show him in a different light than the totally unscrupulous and villainous one in which he's usually misrepresented.
Before reading this book (which is aptly subtitled "The Political Seduction of the Law"), I was already pretty familiar with this background and with the particular wrinkles it's assumed in modern U.S. legal culture, mostly from reading in periodical sources over the years. I read this book to compare it with the views I'd already formed on the subject, as well as to possibly learn something new. Since the book I'm currently reading basically deals with matters of law (and of abuse of judicial power), I thought it might be a good time to go back and retrospectively review this one as well.
A former Yale law professor, U.S. Solicitor General and Federal judge, author Bork is of course well-known (to those who follow public affairs) for his rejected nomination to the Supreme Court during the Reagan administration. He's a serious thinker on constitutional law and legal policy (more serious than most of the senators who voted against his nomination), and an articulate expositor of the view that the Constitution and statute law have objective, discernible meaning which is binding on judges to enforce, regardless of their personal views and policy preferences. Here, after a short introduction that summarizes this view and its significance in the modern U.S. context, he divides the main body of the book into three parts.
First, he presents a history of U.S. Supreme Court constitutional jurisprudence (up to 1990, when this book was written), going back to its earliest beginnings, which demonstrates that, although today the idea is more aggressively and openly embraced and defended, the practice of justices reading their own political preferences into the Constitution and law with no actual basis in the text of either is nothing new. And though Bork is a hated boogeyman for the Left, he makes it clear that this practice has historically also --and just as illegitimately-- been a common one in the service of "conservative" agendas (or, at least, oligarchic and elitist agendas wrapped in "conservative" rhetoric), such as the defense of slavery and the striking down of economic regulations. He pays particular attention to the brainchild of Chief Justice Taney, the theory of "substantive due process," (as opposed to real due process), under which not only must the administrative procedures of the law be fair, but the substance of the law itself must conform to the judge's personal view of fairness. (Taney, for instance, felt that legal prohibition of slavery was "unfair" to slave owners.) In the second part, he summarizes and rebuts the major contemporary legal theories that purport to justify judicial departure from the written text of the law, and to explain what "authority," if any, should be put in its place. This is probably the driest section of the book, and the hardest even for educated non-lawyer readers to understand. My impression is that here the Yale professor in him sort of takes over, and that he's writing this for lawyers and law students in a milieu where all of these theories are to be taken seriously, and failure to adequately address one of them opens you to the charge of being an intellectual lightweight. By the time he's done, that's not a charge his critics can throw at him (at least, not fairly), but it may leave most readers a bit glassy-eyed. Finally, the third part is a first-hand account of his confirmation battle, in which battle lines were drawn in an openly-politicized process that was frankly about what political agendas he would or wouldn't serve on the court (rather than about his fitness to impartially apply the law as it's written), and what that presages for future Supreme Court nominations. One of the most important parts of the book may be the appendix --the text of the U.S. Constitution and its amendments, which even most educated Americans have never read, and about which most are totally clueless.
I didn't go a full five stars in my rating here, because I think there are areas where he could have made his case better and more clearly for ordinary readers. One point that's not sufficiently stressed, IMO (though he mentions it) is that the Constitution itself does provide a procedure by which it CAN be changed to address new conditions and realities, so that the only alternative to a "constitution" made out of silly-putty in the hands of an unelected clerisy of judges isn't, as we're constantly told by the media, a hopelessly outdated document that can never be changed --rather, it's democratically enacted change by the people's representatives, requiring a process and a high degree of consensus that guarantees that changes aren't made frivolously. A second point that's not addressed is the role of postmodernism as the genesis of a lot of the current assault on the written Constitution, with its glorification of total subjectivism and its solipsistic denial that language can have any shared meaning between any two people. (That more basic discussion could have productively replaced the part on the different permutations of "living Constitution" theory, since it underlies all of them.) Related to the question of language and its meaning, there is a long-standing legal doctrine that when legal language is claimed to actually be ambiguous, a court is obliged to construe it in the way that a hypothetical "reasonable person" would. This test would eliminate a vast amount of judicial contortions of the English language, but Bork doesn't discuss it here. I could raise other quibbles, and occasional disagreements, as well. But in the main, this is a very solid discussion of a crucially important subject, and one that I think most readers could learn from. Despite the dense subject matter of some of it, it's mostly accessible reading, presented with good humor and a lot of genuine wit (Bork must have been popular as a lecturer, at least with students who didn't automatically hate him for his beliefs).
One final note is worth mentioning here. Bork doesn't discuss this in the book, but one of the main arguments of people who demonize him is based on the fact that during the Watergate crisis, after Attorney General Eliot Richardson and his deputy had resigned rather than obey Nixon's order to fire Archibald Cox, the special prosecutor, it fell to Bork as the number three official in the department to do it --proof positive, say the demonizers, that he was a willing accomplice of the crook Nixon. The truth of the matter, as I learned years ago from reading accounts of the matter more detailed than the sound bites, was that Bork was as disgusted as the other two and wanted to resign also. He was prevailed upon by Richardson not to, on the grounds that if he did "there would be no Justice Department" left; and having accepted the felt 'duty" of staying on, he reluctantly carried out Nixon's order, under protest. One might argue that he should have resigned, no matter what Richardson thought that would do to the department. (In his shoes, I probably would have.) Nevertheless, this does show him in a different light than the totally unscrupulous and villainous one in which he's usually misrepresented.
October 15, 2016
Written more than a quarter century ago, "The Tempting of America" can now be acknowledged as a prophetic treatise on the dangers of allowing the Constitution to be rewritten by judicial fiat for the purposes of achieving through the courts what a self-appointed cultural/intellectual elite could not achieve through the democratic process.
Though his confirmation hearings occurred just two years after President Ronald Reagan appointed, and the Senate unanimously confirmed, Justice Antonin Scalia to the Supreme Court, the Democrat opposition to Bork was so vicious, so dishonest, and so widespread that the process would coin a new word; "borking", meaning "to obstruct through systematic defamation or vilification". Justice Clarence Thomas, who narrowly survived the same attacks just two years later at the hands of the corrupt and dishonest Senators Ted Kennedy and Joe Biden, called the process a "high-tech lynching".
During Bork’s confirmation hearings, the ever-despicable drunkard and womanizing Senator Ted Kennedy said: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government.” The Democrats colluded with the liberal major media and progressive activist organizations to paint a horrific picture of Bork that was a total fabrication, all because they loathed his politics. That Bork was able to, following the coordinated assassination of his character, maintain a bit of a gallows humor about his ordeal (he joked that the Democrats must see him as immensely powerful if, as one of nine member of the Supreme Court, he would be able to single-handedly remake the American political landscape), is a testament to his decency and character.
Why did the Democrats wage an all-out political and media war against Bork? Because of his judicial philosophy. Like Scalia before him and Thomas after, and if possible even more than either of them, Judge Bork was a disciple of an originalist/textualist interpretation of the Constitution, or, as Scalia once explained, the idea that the Constitution "says what it says and doesn't say what it doesn't say".
In other words, he believed deeply that it was not only wrong, but dangerous to the foundation of the Constitution and the very fabric of the American republic, for the judiciary to go one step further beyond what the Constitution says in its explicit text. Bork argued that to do so was to place these decisions in the hands of a judicial oligarchy; a usurpation of the powers that rightly belong to the people as exercised through their elected representatives. Ironically, though the Left screams that such a philosophy its itself a form of judicial activism meant to push a conservative agenda, in practice that meant that Bork at times issued rulings based on the Constitution which maintained policies that he personally opposed and would vote against as a citizen.
Bork details how the "living Constitution" philosophy took root in the law schools of the elite universities, taught by progressive legal professors who loathed the restrictions of originalist thought because it handcuffed their ability to reshape the law according to their own progressive vision. As the progressive vision took hold, more and more power was ceded to government, especially the federal government, and the people became the servants, rather than the masters, of government. This progressive vision has been promulgated through our institutions of higher learning, through the courts, and through the media, and now has reached a level of such pervasiveness that the very Constitution itself is at risk, with not only professors and pundits, but federal judges and even Supreme Court Justices declaring it to be a deeply flawed and obsolete document which ought not be adhered to.
Bork's prophetic warning was captured on the very first page of his book, where he stated, "In the past few decades American institutions have struggled with the temptation of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, subject - law, religion, literature, economics, science, journalism, or whatever - struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, becomes politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the "correct" political outcome."
Does this not perfectly describe our day, where everything is seen through a political lens? Where scientists are bullied and blacklisted for straying from politically acceptable orthodoxy? Where Americans are divided one against another on a daily basis on where they fall on the political spectrum? Where people are forced to act in violation of their conscience because their beliefs are deemed politically incorrect?
When government usurps more and more power from the citizens to whom that power rightly belongs, when government can impose its will outside of the enumerated powers of Article I, Section 8, then life becomes a zero-sum game, where my victory becomes your loss. There are no longer just differences of opinion when one can be punished by government for holding a politically correct opinion, and animus naturally swells within those subjected to the capriciousness of raw power, deepening the anger, resentment, and distrust of their fellow man.
We are at a tipping point in America. With a string of controversial 5-4 decisions either restricting government intrusion on God-given rights (Heller, Citizens United) or unconstitutionally expanding government power (Obergefell v. Hodges, King v. Burwell, Friedrichs v. California Teachers Association), another progressive on the Court would mean the evisceration of many, if not most, of the rights protected by the Constitution, subverting them and subjecting them to the personal viewpoints of a handful of Supreme Court judges. This is not what our Founders fought and died for. This is not a free America.
We have been warned.
Though his confirmation hearings occurred just two years after President Ronald Reagan appointed, and the Senate unanimously confirmed, Justice Antonin Scalia to the Supreme Court, the Democrat opposition to Bork was so vicious, so dishonest, and so widespread that the process would coin a new word; "borking", meaning "to obstruct through systematic defamation or vilification". Justice Clarence Thomas, who narrowly survived the same attacks just two years later at the hands of the corrupt and dishonest Senators Ted Kennedy and Joe Biden, called the process a "high-tech lynching".
During Bork’s confirmation hearings, the ever-despicable drunkard and womanizing Senator Ted Kennedy said: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government.” The Democrats colluded with the liberal major media and progressive activist organizations to paint a horrific picture of Bork that was a total fabrication, all because they loathed his politics. That Bork was able to, following the coordinated assassination of his character, maintain a bit of a gallows humor about his ordeal (he joked that the Democrats must see him as immensely powerful if, as one of nine member of the Supreme Court, he would be able to single-handedly remake the American political landscape), is a testament to his decency and character.
Why did the Democrats wage an all-out political and media war against Bork? Because of his judicial philosophy. Like Scalia before him and Thomas after, and if possible even more than either of them, Judge Bork was a disciple of an originalist/textualist interpretation of the Constitution, or, as Scalia once explained, the idea that the Constitution "says what it says and doesn't say what it doesn't say".
In other words, he believed deeply that it was not only wrong, but dangerous to the foundation of the Constitution and the very fabric of the American republic, for the judiciary to go one step further beyond what the Constitution says in its explicit text. Bork argued that to do so was to place these decisions in the hands of a judicial oligarchy; a usurpation of the powers that rightly belong to the people as exercised through their elected representatives. Ironically, though the Left screams that such a philosophy its itself a form of judicial activism meant to push a conservative agenda, in practice that meant that Bork at times issued rulings based on the Constitution which maintained policies that he personally opposed and would vote against as a citizen.
Bork details how the "living Constitution" philosophy took root in the law schools of the elite universities, taught by progressive legal professors who loathed the restrictions of originalist thought because it handcuffed their ability to reshape the law according to their own progressive vision. As the progressive vision took hold, more and more power was ceded to government, especially the federal government, and the people became the servants, rather than the masters, of government. This progressive vision has been promulgated through our institutions of higher learning, through the courts, and through the media, and now has reached a level of such pervasiveness that the very Constitution itself is at risk, with not only professors and pundits, but federal judges and even Supreme Court Justices declaring it to be a deeply flawed and obsolete document which ought not be adhered to.
Bork's prophetic warning was captured on the very first page of his book, where he stated, "In the past few decades American institutions have struggled with the temptation of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, subject - law, religion, literature, economics, science, journalism, or whatever - struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, becomes politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the "correct" political outcome."
Does this not perfectly describe our day, where everything is seen through a political lens? Where scientists are bullied and blacklisted for straying from politically acceptable orthodoxy? Where Americans are divided one against another on a daily basis on where they fall on the political spectrum? Where people are forced to act in violation of their conscience because their beliefs are deemed politically incorrect?
When government usurps more and more power from the citizens to whom that power rightly belongs, when government can impose its will outside of the enumerated powers of Article I, Section 8, then life becomes a zero-sum game, where my victory becomes your loss. There are no longer just differences of opinion when one can be punished by government for holding a politically correct opinion, and animus naturally swells within those subjected to the capriciousness of raw power, deepening the anger, resentment, and distrust of their fellow man.
We are at a tipping point in America. With a string of controversial 5-4 decisions either restricting government intrusion on God-given rights (Heller, Citizens United) or unconstitutionally expanding government power (Obergefell v. Hodges, King v. Burwell, Friedrichs v. California Teachers Association), another progressive on the Court would mean the evisceration of many, if not most, of the rights protected by the Constitution, subverting them and subjecting them to the personal viewpoints of a handful of Supreme Court judges. This is not what our Founders fought and died for. This is not a free America.
We have been warned.
February 4, 2015
Bork's minimalist and indeed somewhat admirable approach to con law, perhaps better understood as "restraint" in the Wilkinsonian style, is presented along with a lengthy recap of his confirmation hearings. Bork, who had the misfortune of bringing with him a complicated and lengthy track record, takes aim at the critics who misrepresented it. Although a deserving choice for the Court (and I say this as a Democrat!), Bork refuses to acknowledge his own failings: yes, his opponents distorted his record, but he was terrible up there, the anti-Reagan/Ollie North. He was fat, surly, and deeply unpleasant. Had Bork been nominated by Nixon, under whom he served with some distinction as Solicitor General, he likely would've sailed through. Once upon a time he was hip, nerd-fashionable, and able to roll with the punches. A cautionary tale for all of us, as we age into angry irrelevance. Bork makes a few jokes in here about being mistaken for C Everett Koop that hit the mark; why couldn't he have displayed such a human side during his hearings?
March 27, 2019
This is a really important book. It is incredibly timely following Justice Kavanaugh’s confirmation hearings, as Judge Bork was denied confirmation for the seat that Justice Kennedy ended up filling, and Kavanugh was confirmed to fill Kennedy’s seat. Bork writes an incredibly accessible account of what the proper role of the judiciary is in our constitutional democracy. I’m not a lawyer, (but I am married to one), and I found the book challenging but (mostly) easily understandable. He then writes an account of his confirmation hearings, which were eerily similar to Kavanaugh’s in many ways, such as the way the “intellectual class” as he labeled it waged a coordinated, untrue, and often vicious campaign against him. He writes a compelling argument for keeping politics out of the judiciary and the confirmation process. It was a great read, if the end was a bit sad because many of his predictions about the future politicization of law have come true.
Read
January 16, 2025I feel like I have read the same 20-80 Supreme Court cases over and over again, and read about them over and over again since I was 14 years old. This book was another such reading. Umberto Eco is right, texts whisper to each other in a never ending library akin to Borges’s library in octagonal shapes with every iteration possible in the world.
May 2, 2018
This is, in many ways, a highly engrossing and intelligent look at constitutional law and a particular approach to it. If you are inclined towards Bork's point of view, I imagine you will find it to be a wonderful study. I do not, but still I found many parts of the book to be engaging and clearly explained. I have two main issues with it.
One, Bork's weak attempt to reconcile his originalist approach and Brown v Board of Education. You can just feel on the page that he knows his views and the decision don't go together, but he (from either personal conviction or political necessity) still tries to scramble together a way to make them seem harmonious. It's such a gaping hole in the book that is always there, no matter what he is writing about.
Second, his inability to admit his personal biases and how they could ever influence his decisions. The best example is the long passage where he attacks the idea of a right to privacy that protects gay sex. I am not going to debate his legal view on that, but I will point out that he -- consciously or not -- slips moralistic, extra-judicial comments into, what he professes to be, a neutral application of legal reasoning. For example, he attacks the view that gay sex is a "victimless crime" that causes harm to no one. He writes that "we" know that is not the case. Who is we? By what proof do we know? Bork doesn't answer. He just leaves the clearly homophobic (what else can you call it?) line dangling there. With all his pretensions of sage, neutral legal analysis, that he says is never influenced by his own personal moral compass, he was clearly blind in situations like this. His obvious moral disapproval of same sex relations was so natural to him, that he couldn't see he was letting it seep into his supposed neutral, textual analysis. This is a damning sin when the entire book rails against what he sees as liberal judges letting their morality influence their reasoning.
One, Bork's weak attempt to reconcile his originalist approach and Brown v Board of Education. You can just feel on the page that he knows his views and the decision don't go together, but he (from either personal conviction or political necessity) still tries to scramble together a way to make them seem harmonious. It's such a gaping hole in the book that is always there, no matter what he is writing about.
Second, his inability to admit his personal biases and how they could ever influence his decisions. The best example is the long passage where he attacks the idea of a right to privacy that protects gay sex. I am not going to debate his legal view on that, but I will point out that he -- consciously or not -- slips moralistic, extra-judicial comments into, what he professes to be, a neutral application of legal reasoning. For example, he attacks the view that gay sex is a "victimless crime" that causes harm to no one. He writes that "we" know that is not the case. Who is we? By what proof do we know? Bork doesn't answer. He just leaves the clearly homophobic (what else can you call it?) line dangling there. With all his pretensions of sage, neutral legal analysis, that he says is never influenced by his own personal moral compass, he was clearly blind in situations like this. His obvious moral disapproval of same sex relations was so natural to him, that he couldn't see he was letting it seep into his supposed neutral, textual analysis. This is a damning sin when the entire book rails against what he sees as liberal judges letting their morality influence their reasoning.
October 22, 2020
Published in 1990, Judge Robert Bork presents his message in three parts: Part I is about the history of the courts and the ever increasing role and reach of government through prodigious SCOTUS decisions (e.g., Marbury, Dred Scott, Lochner, Brown, and, of course, Roe); Part II is part and parcel a defense of originalism and subsequent discussion about the opposing view - what Judge Bork calls revisionism, but which others might call judicial activism - as well as bigger picture points about constitutional jurisprudence; and Part III is Judge Bork’s own description of what happened during his nomination to SCOTUS by President Reagan, ultimate rejection by the Senate (Google the term “borking” if you’re interested in understanding what happened and Senators Ted Kennedy and Joe Biden’s roles), and his decision to thereafter resign from the bench. Some points that Judge Bork makes: (1) In tackling the Madisonian Dilemma courts must protect the liberty of individuals while being equally scrupulous in respecting the rights of majorities to govern; (2) When judges allow their own political desires, biases, and/or their views of justice to dominate, they end up becoming legislators; (3) Contrary to the Founders’ intent, Americans are increasingly viewing the courts, including SCOTUS, as a political rather than legal institution (those interested in Alexander Hamilton’s views of the role of the judiciary will enjoy reading Federalist No. 78); (4) Because federal judges and justices are appointed and given life tenure, and thus not directly accountable to the people, they must apply the law irrespective of their own values or whatever the majority currently deems the moral or ethical Zeitgeist.
February 13, 2014
In this work Judge Bork examines how law is corrupted when judges allow political and personal value preferences to substitute themselves for the original intentions founded in the constitution. In disregard the constitution, we lose the rule of law and replace it with the rule of men. The rule of men leads ultimately to a collapse in the basis of law, as it simply becomes what whatever any judge wants it to be that day.
Bork gives a history of different periods in the life of the courts where judges have made decisions based on their preferences, as opposed to constitutional origins. After that he explores the major theories on both the left and the right that seek to disregard the use of the consititution in constitutional law, and how they fail to insure real justice is done.
In the last part of the book, he discusses his nomination to the Supreme Court and the smear job that was perpetrated against him and his views. Shakespeare wrote in Measure for Measure, "In the jury, the sworn 12, there may be a thief or two guiltier than he they try." That is certainly the case with Biden's burning at the stake by the Senate. Ted Kennedy and Joe Biden lead a smear campaign against someone who's sandals they were not worthy to tie. The ultimate irony is that while Biden is doing his character assassination against Bork he had to drop out of the Presidential race because of his own dishonesty and plagiarism.
Bork gives a history of different periods in the life of the courts where judges have made decisions based on their preferences, as opposed to constitutional origins. After that he explores the major theories on both the left and the right that seek to disregard the use of the consititution in constitutional law, and how they fail to insure real justice is done.
In the last part of the book, he discusses his nomination to the Supreme Court and the smear job that was perpetrated against him and his views. Shakespeare wrote in Measure for Measure, "In the jury, the sworn 12, there may be a thief or two guiltier than he they try." That is certainly the case with Biden's burning at the stake by the Senate. Ted Kennedy and Joe Biden lead a smear campaign against someone who's sandals they were not worthy to tie. The ultimate irony is that while Biden is doing his character assassination against Bork he had to drop out of the Presidential race because of his own dishonesty and plagiarism.
July 31, 2015
This is the HARDEST book I have ever tried to read and the back cover said it was the most understandable book ever written on the law. I gave up but I did learn some interesting things before I did. I learned that the high courts decision in Roe vs. Wade was not based on an explicit constitutional right but was distorted from the right to privacy. The author, a high judge in Washington D.C, claims that the courts are to interpret the Constitution not make laws. The laws should be made by the Legislative branch. He spends a long time explaining this concept. The book led me to wonder if those promoting the right of homosexuals should not be going the judicial route.
June 11, 2009
never thought i'd relish reading a book i was so prepared to dislike. would never look at 'substantive due process' and the 'equal protection clause' with the same reverential attitude i acquired from those long ago constitutional law classes.
November 29, 2009
Very revealing insights into the confirmation debacle that I personally listened to from gavel to gavel. The late Edward Kennedy and Joe Biden are exposed for the rogue and bafoon the respectively was/is.
May 11, 2012
Should be required reading for every political science, us gov't, and law student. Part I and III are a good read...Part II is a little more tedious and harder to read for someone from a non-legal background.
October 12, 2008
A must read for anyone who wants to understand the nuts and bolts of our political battles over judges and the Supreme Court. Agree with him or not, you will understand the issues much better.
July 30, 2011
Unbelievable book. Best I have read on Constitutional law.
September 30, 2011
Disgustingly conservative
April 25, 2016
Complaints? This book is a heavy, intellectual read, not for the faint of heart. It merits attention and study--but it will reward your efforts ten-fold.
Now for the good stuff: After I read Bork's book, I told fellow law students there were few law school courses I would not trade for it. I only wish I had read it before sitting through Constitutional Law.
Yet the book would be worth the reading for anyone interested in the law. It is likely the most complete and well-reasoned statement of the conservative position (and arguably the historical "American" position) on judicial philosophy, legal practice, and several key political doctrines, including the separation of powers, federalism, and the Madisonian system. He begins:
"In the Past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. . . . It is coming to be denied that anything counts, not objectivity, not even intellectual honesty, that stands in the way of the `correct' political outcome."
He goes on to describe the greatest threat to the law today:
"In the law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice . . . is not embodied in a statute or any provision of the Constitution. He then must choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."
Bork argues that these result-oriented decisions have moved holdings steadily to the left for the last half century. As a result, many Americans do not like those outcomes and are no longer "deceived by the claim that those results are compelled by the actual Constitution." Soon the law may go the way of the press, Bork fears, losing legitimacy with a large part of the public. And conservative activism would only make it worse.
"Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . There are only two sides. Either the Constitution and statutes are law, which means their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win."
Bork answers a likely question: "What does it mean to say a judge is bound by the law?" It means he is bound by the only thing that can be called law: the principles of the text, whether Constitution or statute, as generally understood at the enactment." He notes that the lay reader may wonder at this statement. Isn't that obvious?
"Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively and eruditely denied by constitutional sophisticates, particularly those who teach the subject in law schools."
Here, Bork argues, commonsense is sound. He quotes Justice Story. "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill or visionary speculation."
Bork resumes: "Story might have been addressing today's constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the Constitution or the American public. That, surely, is the point of their efforts."
Some of my most engaging law school professors saw everything as relative, and the law as an evolutionary force, changing the times and changing with the times. Any appeal to original intent is an appeal to something not only irrelevant but also unknowable. (Of course, the original intent of a contract is evident from the four corners of the document, right? But that's not possible with the Constitution apparently, nor are the numerous speeches and ratifying conventions any help.) Here Bork concedes a distinction. For hair splitters, sure--original intent "calls for speculation." But the ORIGINAL UNDERSTANDING is not at all hard to determine. The reason so many are unhappy with the doctrine of original understanding is not--as they claim--that they have philosophical questions about epistemology. Activists deride appeals to original understanding because they fear such a rule would never have won for them the great civil rights cases of the late 20th century--and those they hope yet to win.
But Bork disagrees. Here his book becomes a tremendous resource. He examines the history of the Court and most of the great cases, explaining that many revisionist cases could have reached the same results through an appeal to original understanding and would have strained logic less in doing so. BROWN V. BOARD OF EDUCATION is the most stunning example Bork cites of a case in which the Court felt compelled to look outside the original understanding of the Constitution when it did not need to. The result is that the century's most immediately, even dangerously controversial decision was based on an argument few could accept. It need not have been this way. Bork's discussion of the this point alone will be worth the price of the book for some.
Bork has no raging desire to see the poor cases overturned, however. Out of respect both for stare decisis and the integrity of the Court itself, Bork would not even reverse the most badly reasoned case of the 20th century, ROE V. WADE. To be more precise, Bork places Roe in a group of cases "so embedded in the life of the nation, so accepted by society, so fundamental to the . . . expectations of individuals . . . that the result should not be changed now." (*I believe he has since modified this position.)
This brings up another interesting issue. Bork makes the case for judicial integrity, the most important commitment of any judge. The temptation to fudge the law to help bad facts is one the judge must resist, because any time the law is compromised, it is weakened. The judge's task is simple:
"In a constitutional democracy the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge. The sole task of the latter--and it is a task quite large enough for anyone's wisdom, skill, and virtue--is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist."
WHO IS ROBERT BORK TO TALK ABOUT A DISCIPLINED JUDICIARY, ABOUT PERSONAL OR PROFESSIONAL INTEGRITY, some will ask. The second half of his book addresses just that. He describes in detail the nomination process he endured and the lies told about him in the campaign to keep him off the bench. For example, his position in a number of cases was exactly the opposite of the way it was described in the hearings. He received a ringing endorsement from the ABA before taking a seat on the D.C. Court of Appeals. Once there he decided a number of cases in favor of women and minorities. But in the Senate confirmation hearings he was asked, "Why are you against women?" He repeatedly directed Senators Kennedy, Biden, and others to the pages in the opinions proving he had in fact held exactly the opposite. But as they say, a lie told often enough begins to seem true--and such was the case with the lies told about Bork. During one private moment of peculiar candor, Ted Kennedy shook Bork's hand and said, "Nothing personal." Then they vilified him.
Bork's book then, is his public defense. In that it is unique. Not only did the Reagan administration do little to defend him, so unprepared were they for the unprecedented campaign to destroy a judicial nominee, but Bork himself made no public defense.
"The public interest generated by the enormous campaign against me caused dozens of reporters to seek interviews, and television and radio talk programs repeatedly asked me to appear. Despite the unanswered hostile campaign, I decided that it was improper for a judicial nominee to wage a counter campaign by discussing his views on substantive issues anywhere before the Senate, even if it meant letting slanders go unanswered."
Toward the end White House strategists plead with Bork and his wife to appear on a Barbara Walters special. "But . . . we decided we would rather go down than compromise ourselves with what would be, in effect, a personal media appeal." White House advisors thought this a serious mistake; some thought it cost him a seat on the bench. "However that may be, I continue to think that was the right decision.
"The entire process of a judicial confirmation was politicized more than ever before in America's history, but at least I did not contribute to that."
(my amazon.com review)
Now for the good stuff: After I read Bork's book, I told fellow law students there were few law school courses I would not trade for it. I only wish I had read it before sitting through Constitutional Law.
Yet the book would be worth the reading for anyone interested in the law. It is likely the most complete and well-reasoned statement of the conservative position (and arguably the historical "American" position) on judicial philosophy, legal practice, and several key political doctrines, including the separation of powers, federalism, and the Madisonian system. He begins:
"In the Past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. . . . It is coming to be denied that anything counts, not objectivity, not even intellectual honesty, that stands in the way of the `correct' political outcome."
He goes on to describe the greatest threat to the law today:
"In the law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice . . . is not embodied in a statute or any provision of the Constitution. He then must choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."
Bork argues that these result-oriented decisions have moved holdings steadily to the left for the last half century. As a result, many Americans do not like those outcomes and are no longer "deceived by the claim that those results are compelled by the actual Constitution." Soon the law may go the way of the press, Bork fears, losing legitimacy with a large part of the public. And conservative activism would only make it worse.
"Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . There are only two sides. Either the Constitution and statutes are law, which means their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win."
Bork answers a likely question: "What does it mean to say a judge is bound by the law?" It means he is bound by the only thing that can be called law: the principles of the text, whether Constitution or statute, as generally understood at the enactment." He notes that the lay reader may wonder at this statement. Isn't that obvious?
"Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively and eruditely denied by constitutional sophisticates, particularly those who teach the subject in law schools."
Here, Bork argues, commonsense is sound. He quotes Justice Story. "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill or visionary speculation."
Bork resumes: "Story might have been addressing today's constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the Constitution or the American public. That, surely, is the point of their efforts."
Some of my most engaging law school professors saw everything as relative, and the law as an evolutionary force, changing the times and changing with the times. Any appeal to original intent is an appeal to something not only irrelevant but also unknowable. (Of course, the original intent of a contract is evident from the four corners of the document, right? But that's not possible with the Constitution apparently, nor are the numerous speeches and ratifying conventions any help.) Here Bork concedes a distinction. For hair splitters, sure--original intent "calls for speculation." But the ORIGINAL UNDERSTANDING is not at all hard to determine. The reason so many are unhappy with the doctrine of original understanding is not--as they claim--that they have philosophical questions about epistemology. Activists deride appeals to original understanding because they fear such a rule would never have won for them the great civil rights cases of the late 20th century--and those they hope yet to win.
But Bork disagrees. Here his book becomes a tremendous resource. He examines the history of the Court and most of the great cases, explaining that many revisionist cases could have reached the same results through an appeal to original understanding and would have strained logic less in doing so. BROWN V. BOARD OF EDUCATION is the most stunning example Bork cites of a case in which the Court felt compelled to look outside the original understanding of the Constitution when it did not need to. The result is that the century's most immediately, even dangerously controversial decision was based on an argument few could accept. It need not have been this way. Bork's discussion of the this point alone will be worth the price of the book for some.
Bork has no raging desire to see the poor cases overturned, however. Out of respect both for stare decisis and the integrity of the Court itself, Bork would not even reverse the most badly reasoned case of the 20th century, ROE V. WADE. To be more precise, Bork places Roe in a group of cases "so embedded in the life of the nation, so accepted by society, so fundamental to the . . . expectations of individuals . . . that the result should not be changed now." (*I believe he has since modified this position.)
This brings up another interesting issue. Bork makes the case for judicial integrity, the most important commitment of any judge. The temptation to fudge the law to help bad facts is one the judge must resist, because any time the law is compromised, it is weakened. The judge's task is simple:
"In a constitutional democracy the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge. The sole task of the latter--and it is a task quite large enough for anyone's wisdom, skill, and virtue--is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist."
WHO IS ROBERT BORK TO TALK ABOUT A DISCIPLINED JUDICIARY, ABOUT PERSONAL OR PROFESSIONAL INTEGRITY, some will ask. The second half of his book addresses just that. He describes in detail the nomination process he endured and the lies told about him in the campaign to keep him off the bench. For example, his position in a number of cases was exactly the opposite of the way it was described in the hearings. He received a ringing endorsement from the ABA before taking a seat on the D.C. Court of Appeals. Once there he decided a number of cases in favor of women and minorities. But in the Senate confirmation hearings he was asked, "Why are you against women?" He repeatedly directed Senators Kennedy, Biden, and others to the pages in the opinions proving he had in fact held exactly the opposite. But as they say, a lie told often enough begins to seem true--and such was the case with the lies told about Bork. During one private moment of peculiar candor, Ted Kennedy shook Bork's hand and said, "Nothing personal." Then they vilified him.
Bork's book then, is his public defense. In that it is unique. Not only did the Reagan administration do little to defend him, so unprepared were they for the unprecedented campaign to destroy a judicial nominee, but Bork himself made no public defense.
"The public interest generated by the enormous campaign against me caused dozens of reporters to seek interviews, and television and radio talk programs repeatedly asked me to appear. Despite the unanswered hostile campaign, I decided that it was improper for a judicial nominee to wage a counter campaign by discussing his views on substantive issues anywhere before the Senate, even if it meant letting slanders go unanswered."
Toward the end White House strategists plead with Bork and his wife to appear on a Barbara Walters special. "But . . . we decided we would rather go down than compromise ourselves with what would be, in effect, a personal media appeal." White House advisors thought this a serious mistake; some thought it cost him a seat on the bench. "However that may be, I continue to think that was the right decision.
"The entire process of a judicial confirmation was politicized more than ever before in America's history, but at least I did not contribute to that."
(my amazon.com review)
September 16, 2017
Bork was an apostle of the Constitution and The Tempting of America was his Good Book. Like the Old Testament the first section explores the history of judicial activism in America. Then, like epistles, he follows with an apology (look up all the definitions) of Originalism and an deconstruction of the other theories and advocates of other Constitutional interpretive methods, including the Lochner Era and the earliest cases of Justice John Marshall. Finally, his gospel relates his career, leading up to and analyzing the confirmation hearings.
The left's campaign to destroy Bork (with the cliched accusations of racism and sexism) was rooted in the realization that he would not condone the fabrication of new rights to privacy that had no Constitutional origin and the hyper activism of the Warren Court. This is supported by Bork's general thesis that the intellectual elites in academia (specifically of law), courts, and media propagated a leftist, radical egalitarianism (not found in the Constitution) that manifests itself to this day in racial, sexual, and gender issues. It is interesting because Bork was clear that though he believed the New Deal Court's extension of the Commerce Clause to essentially encompass any activity (unusual since the Constitution is supposed to limit governmental power) was illegitimate, that society had acclimated itself to the expanded role of the Federal government and it was too late to go back.
This is important because while the American people would likely resist the dismantling of Federal overreach in social programing, they are not (even today) so inclined to protect abortion and gay rights. Essentially, the left know that they could never pass constitutional amendments to entrench those rights, so the judiciary must create rights to satisfy their own values rather than leaving it up to the democratic process. Their methodology is not a legal process but rather a means to an end. Any honest reading of some of these cases can sense their absurdity, but their advocates insist we must accept the ruling because the Court said so, meaning that one Justice decides the fate of an issue for the whole country, this is not what the Founders had in mind. What these people don't understand is that as they undermine the rule of law, they open the door to undermining themselves, that is, the propagation of the "living and breathing" Constitution, means when the right controls the court, it can reverse all of their "progress" because it has taken on a New Life.
This book is important at understanding the role of the judiciary and legal community in the culture wars. It is a look at the interplay between law, power, and legitimacy through American history. Though I would say, even for an attorney, this book is dense and slow to get through (though it may be the result of my daily having to read and review financial regulations so that I've been drained intellectually as I read the book). I think the book is a clear discussion of the history of the Supreme Court and the nature of the Constitution and its interpretation.
For those that are hesitant to tackle the whole book, I would recommend Chapters 11-13, it runs approximately 25 pages and discusses the big issues in a condensed form (Chapter 11: Of Moral Relativism, and the Constitution, Chapter 12: The Impossibility of All Theories that Depart from Original Understanding, and Chapter 13: In Defense of Legal Reasoning: "Good Results" vs. Legitimate Process). His conclusion is worth reading to with his references to Thomas More and Edmund Burke, and an apt comparison between the French vs. the American Revolution. He ends his book fittingly with the following sentence, "Those who made and enforced our Constitution knew man's nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask that our judges adhere."
The left's campaign to destroy Bork (with the cliched accusations of racism and sexism) was rooted in the realization that he would not condone the fabrication of new rights to privacy that had no Constitutional origin and the hyper activism of the Warren Court. This is supported by Bork's general thesis that the intellectual elites in academia (specifically of law), courts, and media propagated a leftist, radical egalitarianism (not found in the Constitution) that manifests itself to this day in racial, sexual, and gender issues. It is interesting because Bork was clear that though he believed the New Deal Court's extension of the Commerce Clause to essentially encompass any activity (unusual since the Constitution is supposed to limit governmental power) was illegitimate, that society had acclimated itself to the expanded role of the Federal government and it was too late to go back.
This is important because while the American people would likely resist the dismantling of Federal overreach in social programing, they are not (even today) so inclined to protect abortion and gay rights. Essentially, the left know that they could never pass constitutional amendments to entrench those rights, so the judiciary must create rights to satisfy their own values rather than leaving it up to the democratic process. Their methodology is not a legal process but rather a means to an end. Any honest reading of some of these cases can sense their absurdity, but their advocates insist we must accept the ruling because the Court said so, meaning that one Justice decides the fate of an issue for the whole country, this is not what the Founders had in mind. What these people don't understand is that as they undermine the rule of law, they open the door to undermining themselves, that is, the propagation of the "living and breathing" Constitution, means when the right controls the court, it can reverse all of their "progress" because it has taken on a New Life.
This book is important at understanding the role of the judiciary and legal community in the culture wars. It is a look at the interplay between law, power, and legitimacy through American history. Though I would say, even for an attorney, this book is dense and slow to get through (though it may be the result of my daily having to read and review financial regulations so that I've been drained intellectually as I read the book). I think the book is a clear discussion of the history of the Supreme Court and the nature of the Constitution and its interpretation.
For those that are hesitant to tackle the whole book, I would recommend Chapters 11-13, it runs approximately 25 pages and discusses the big issues in a condensed form (Chapter 11: Of Moral Relativism, and the Constitution, Chapter 12: The Impossibility of All Theories that Depart from Original Understanding, and Chapter 13: In Defense of Legal Reasoning: "Good Results" vs. Legitimate Process). His conclusion is worth reading to with his references to Thomas More and Edmund Burke, and an apt comparison between the French vs. the American Revolution. He ends his book fittingly with the following sentence, "Those who made and enforced our Constitution knew man's nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask that our judges adhere."
March 11, 2019
In 1987, President Ronald Reagan nominated eminent legal scholar Robert Bork for a seat on the United States Supreme Court. Conservatives thought the road might finally be open to a Court that would interpret the Constitution and laws of the United States in accordance with the original intention of those who enacted the same, and leave the revisions and politics to the politicians. Democrats and other left-wingers, fearing the same thing, promptly attacked.
A sober discussion of Bork's judicial philosophy and background obviously was not going to get Bork's opponents what they wanted, so they instead launched a relentless barrage of false allegations against him. Bork's nomination went down in flames, but not before his name had contributed a new verb to the English language. "To bork" someone now is defined as "to obstruct someone, especially a candidate for political office, by relentlessly defaming or vilifying them" (from the Oxford English Dictionary) or "to attack or defeat a nominee or candidate for public office unfairly through an organized campaign of harsh public criticism or vilification" (from the Merriam-Webster English Dictionary).
This insanity was triggered by the fact that Bork was one of the leading exponents of originalism - the judicial doctrine that laws should be interpreted in accordance with original intent. In this book, Bork describes the Supreme Court's at-best fitful attention to original intent over the years, and convincingly shows shows the impossibility of any other mode of interpretation as a matter of law, as opposed to mere willfulness and the imposition of the judge's own political views upon the electorate. Since judicial revisionism has resided primarily on the left, it is not surprising that most of Bork's targets lie on that part of the spectrum. However, in cases where those on the right made the same error, such as during the "Lochner" era of substantive due process (a contradiction in terms if ever there was one), Bork also does not pull his punches.
The last part of the book is Bork's own memoir of his nomination and the attacks he suffered. Bork is measured in his criticism of the vicious miscreants who attacked him and Reagan administration officials who were caught unprepared by the attacks. Indeed, he is much fairer to his opponents than they were to him during the debacle of the nomination. To my mind, however, that story has been told better, and more thoroughly, elsewhere.
The dark political impulses released by the campaign against Robert Bork remain loose. Although some nominees, such as John Roberts, Samuel Alito, and Neil Gorsuch, were able to slip through with relatively civil hearings (with emphasis on the modifier "relatively"), the attacks on Clarence Thomas and Brett Kavanaugh were even more vicious than what Bork had to endure. What began with relentless slander concerning Judge Bork's views progressed to horrendous lies having nothing to do with the law in the Thomas hearings, and even viler and more obvious lies concerning long-ago events and sheer lunacy being accepted as gospel truth by nearly half of the Senate simply because it was politically useful in the recent Kavanaugh confirmation.
The underlying dynamic remains unchanged since the 1980s. The left has been handed victory after victory by activist and biased judges which it never could win at the ballot box, and fears the loss of that power. Since the battle is not yet over, it is important to understand just what originalism is and why some fear it so much, even though they may feel compelled to claim they actually are trying to defend original intent. Bork's book provides a solid introduction to the subject - accessible to the intelligent general reader, yet substantive enough to be of use to specialists. It is for this reason that I highly recommend The Tempting of America and give it five stars.
A sober discussion of Bork's judicial philosophy and background obviously was not going to get Bork's opponents what they wanted, so they instead launched a relentless barrage of false allegations against him. Bork's nomination went down in flames, but not before his name had contributed a new verb to the English language. "To bork" someone now is defined as "to obstruct someone, especially a candidate for political office, by relentlessly defaming or vilifying them" (from the Oxford English Dictionary) or "to attack or defeat a nominee or candidate for public office unfairly through an organized campaign of harsh public criticism or vilification" (from the Merriam-Webster English Dictionary).
This insanity was triggered by the fact that Bork was one of the leading exponents of originalism - the judicial doctrine that laws should be interpreted in accordance with original intent. In this book, Bork describes the Supreme Court's at-best fitful attention to original intent over the years, and convincingly shows shows the impossibility of any other mode of interpretation as a matter of law, as opposed to mere willfulness and the imposition of the judge's own political views upon the electorate. Since judicial revisionism has resided primarily on the left, it is not surprising that most of Bork's targets lie on that part of the spectrum. However, in cases where those on the right made the same error, such as during the "Lochner" era of substantive due process (a contradiction in terms if ever there was one), Bork also does not pull his punches.
The last part of the book is Bork's own memoir of his nomination and the attacks he suffered. Bork is measured in his criticism of the vicious miscreants who attacked him and Reagan administration officials who were caught unprepared by the attacks. Indeed, he is much fairer to his opponents than they were to him during the debacle of the nomination. To my mind, however, that story has been told better, and more thoroughly, elsewhere.
The dark political impulses released by the campaign against Robert Bork remain loose. Although some nominees, such as John Roberts, Samuel Alito, and Neil Gorsuch, were able to slip through with relatively civil hearings (with emphasis on the modifier "relatively"), the attacks on Clarence Thomas and Brett Kavanaugh were even more vicious than what Bork had to endure. What began with relentless slander concerning Judge Bork's views progressed to horrendous lies having nothing to do with the law in the Thomas hearings, and even viler and more obvious lies concerning long-ago events and sheer lunacy being accepted as gospel truth by nearly half of the Senate simply because it was politically useful in the recent Kavanaugh confirmation.
The underlying dynamic remains unchanged since the 1980s. The left has been handed victory after victory by activist and biased judges which it never could win at the ballot box, and fears the loss of that power. Since the battle is not yet over, it is important to understand just what originalism is and why some fear it so much, even though they may feel compelled to claim they actually are trying to defend original intent. Bork's book provides a solid introduction to the subject - accessible to the intelligent general reader, yet substantive enough to be of use to specialists. It is for this reason that I highly recommend The Tempting of America and give it five stars.
April 22, 2024
3.5 Stars
This book was written in 1990, 3 years after the Senate rejected Bork’s nomination for Scotus. There are two parts, the first being a compelling argument (IMO) for judicial restraint (‘originalism’) on the part of the judiciary and the second a somewhat self serving defense of his nomination hearing.
Bork contrasts judicial activism with Constitution based decisions by discussing a series of SCOTUS opinions from Marbury v. Madison thru Dred Scott thru Plessy v. Ferguson thru Brown v. Board of Education to Roe v. Wade. He basically defines activism as judicial opinion based on the moral judgement of the judges, not on the Constitution.
He explains judicial restraint as the necessity for judges to defer to Congress, state legislatures, or the Constitution’s amendment process whenever a decision cannot be clearly intended by the words in the Constitution. Judges are not to make law according to what they think is the right outcome.
Of course one judge’s ‘clearly intended’ is another’s license to ‘interpret’ the often ambiguous wording in the Constitution.
Some of his best quotes on this philosophy are:
“There is something wrong with judicial power that can produce a decision it takes a civil war to overturn (Dred Scott)”
“Once a court abandons the intention of those who made the law, the court is necessarily thrust into a legislative posture “
“No one since 1973 has ever thought of an argument that even remotely begins to justify Roe v. Wade as a constitutional decision “ ( had he lived to see it, Bork certainly would have approved of recent Dobbs decision)
“Departure from the Constitution’s actual principles, whether Dred Scott, Lochner, or Roe, is inconsistent with the maintenance of a constitutional democracy “
The last 3rd of the book is tedious as Bork claims his nomination was railroaded by false accusations from Edward Kennedy, Arlen Specter and some guy named Joe Biden (Yes, THAT Joe Biden). Bork tries to defend himself with clarifying statements about the charges when it was simply a pure political attack on another conservative SCOTUS appointment by Reagan at the end of his second term.
The last sentence in the book neatly sums up Bork’s (and the idea of judicial restraint) : “THOSE WHO MADE & ENDORSED OUR CONSTITUTION KNEW MAN’S NATURE & IT IS TO THEIR IDEAS, RATHER THAN TO THE TEMPTATION OF UTOPIA, THAT WE MUST ASK THAT OUR JUDGES ADHERE”
This book was written in 1990, 3 years after the Senate rejected Bork’s nomination for Scotus. There are two parts, the first being a compelling argument (IMO) for judicial restraint (‘originalism’) on the part of the judiciary and the second a somewhat self serving defense of his nomination hearing.
Bork contrasts judicial activism with Constitution based decisions by discussing a series of SCOTUS opinions from Marbury v. Madison thru Dred Scott thru Plessy v. Ferguson thru Brown v. Board of Education to Roe v. Wade. He basically defines activism as judicial opinion based on the moral judgement of the judges, not on the Constitution.
He explains judicial restraint as the necessity for judges to defer to Congress, state legislatures, or the Constitution’s amendment process whenever a decision cannot be clearly intended by the words in the Constitution. Judges are not to make law according to what they think is the right outcome.
Of course one judge’s ‘clearly intended’ is another’s license to ‘interpret’ the often ambiguous wording in the Constitution.
Some of his best quotes on this philosophy are:
“There is something wrong with judicial power that can produce a decision it takes a civil war to overturn (Dred Scott)”
“Once a court abandons the intention of those who made the law, the court is necessarily thrust into a legislative posture “
“No one since 1973 has ever thought of an argument that even remotely begins to justify Roe v. Wade as a constitutional decision “ ( had he lived to see it, Bork certainly would have approved of recent Dobbs decision)
“Departure from the Constitution’s actual principles, whether Dred Scott, Lochner, or Roe, is inconsistent with the maintenance of a constitutional democracy “
The last 3rd of the book is tedious as Bork claims his nomination was railroaded by false accusations from Edward Kennedy, Arlen Specter and some guy named Joe Biden (Yes, THAT Joe Biden). Bork tries to defend himself with clarifying statements about the charges when it was simply a pure political attack on another conservative SCOTUS appointment by Reagan at the end of his second term.
The last sentence in the book neatly sums up Bork’s (and the idea of judicial restraint) : “THOSE WHO MADE & ENDORSED OUR CONSTITUTION KNEW MAN’S NATURE & IT IS TO THEIR IDEAS, RATHER THAN TO THE TEMPTATION OF UTOPIA, THAT WE MUST ASK THAT OUR JUDGES ADHERE”
November 8, 2020
Bork, like many originalists, is at his strongest when he sticks to originalism - we should stick what it was supposed to originally mean to the people because it is the supreme law of the land, and any other mode of interpretation necessarily departs from the law.
He is at his weakest when he tries to justify his opposition to other modes of interpretation by attacking them as counter-majoritarian. This may have been true at the time, but those arguments are dated and no longer hold water. The positions he holds as representative of most of America (pro-life, anti-homosexual, anti-marijuana) are now decidedly minority. Bork might reply this still doesn't validate the judicial mode of interpretation, and he would be right - but he uses a lot of words attacking the liberal elite for being the moral compass of America. It turns out they were, ultimately, just ahead of their time (as I believe John Hart Ely suggested).
He is at his weakest when he tries to justify his opposition to other modes of interpretation by attacking them as counter-majoritarian. This may have been true at the time, but those arguments are dated and no longer hold water. The positions he holds as representative of most of America (pro-life, anti-homosexual, anti-marijuana) are now decidedly minority. Bork might reply this still doesn't validate the judicial mode of interpretation, and he would be right - but he uses a lot of words attacking the liberal elite for being the moral compass of America. It turns out they were, ultimately, just ahead of their time (as I believe John Hart Ely suggested).
March 25, 2019
Short, quick, clear, concise. Bork doesn't dance around he is a straight shooter. He explains how law exists and the only way it can continue to exist. Going back through our history of law explaining poor decisions (even if they were correctly decided), a great way to learn.
September 17, 2019
No book has had a greater influence on my life than this one did. I picked it up when a sophomore in high school. It’s why I became a lawyer (and an originalist). I am in debt to Judge Bork for having written it, and grateful that he did so before becoming increasing embittered in his final years.
January 29, 2022
Bork raises great questions about potential abuse of power by the judiciary. Unfortunately he shoots himself in the foot by contradicting himself multiple times. The book is also highly verbose, endlessly repetitive and poorly written.
Read
March 28, 2022Didn't finish. His attitude hampered my ability to read it impartially. May return. I would like his view of what happened. But I'd rather have an emotionally neutral view. If such a view exists.
I suspect he and I agree on some things. Just as RBG and I did.
I suspect he and I agree on some things. Just as RBG and I did.
May 20, 2024
Excellent book and a must-read for anyone who wants to understand originalism, and frankly, constitutional law generally. Up there with Scalia's Matter of Interpretation! Gives an all-around excellent and comprehensive theoretical account of Bork's jurisprudence.
October 23, 2025
Very interesting
April 2, 2017
I first came into this book assuming it focused in large part on Bork's nomination, confirmation hearings and Senate rejection. While he covers that subject satisfactorily, the bulk of his book, and it's importance I might add, lies in his vigorous argument for interpreting the Constitution based on the original intent of the Framers, and that nearly all other avenues of interpretation lead to judicial supremacy, imposing values and creating laws outside the Constitution.
Bork is decidedly process oriented, caring not for the result, as he argues nearly all other philosophies do, but simply for the integrity of the law and the Constitution. Only an original intent view can ensure this.
Bork emphasizes that it is the hallmark of a good Judge, as recent SCOTUS nominee Neil Gorsuch contended, of not agreeing with every ruling he comes to. He continuously makes this point.
This was a massively educational, intellectually stimulating and dense book that I very much enjoyed. It is a pity Bork never made it to the Supreme Court; our nation and our legal system would be a hell of a lot better off if he had.
Bork is decidedly process oriented, caring not for the result, as he argues nearly all other philosophies do, but simply for the integrity of the law and the Constitution. Only an original intent view can ensure this.
Bork emphasizes that it is the hallmark of a good Judge, as recent SCOTUS nominee Neil Gorsuch contended, of not agreeing with every ruling he comes to. He continuously makes this point.
This was a massively educational, intellectually stimulating and dense book that I very much enjoyed. It is a pity Bork never made it to the Supreme Court; our nation and our legal system would be a hell of a lot better off if he had.
February 11, 2021
A sad and excellent book by an honest man whose reputation was slandered by a corrupt media as well as collection of lowlife parasites' in Congress led by Joe Biden. In a civilized society Biden would of been tarred and feathered long ago as well as sent into exile.
August 11, 2023
I found this self-serving in the way of most political writings, but did foretell something of our broken system.
October 16, 2014
A very interesting and engaging book. This is the highest profile defense of "original intent" jurisprudence of which I am aware. Bork has a pleasant yet acerbic style as a writer and his command of argument is extremely good.
In terms of flaws as a book, there are really two:
FIRST, Bork never sets out a positive vision of his jurisprudence. Over and over again, he says that one should use original intent because the Constitution is a law. While much of that may seem evident to non-specialists, much of it is heavily contested among practicing lawyers, judges, and scholars, and is not as readily evident as it appears. What does "original intent" mean in that sentence? What does "law" mean in that sentence? As a for instance, many individuals take Marshall's famous exhortation "[W]e must never forget that it is a Constitution we are expounding" to mean that the Constitution should be treated in a way different from a common statute. And to pun in a confusing way, most judges would consider it reasonable to treat common statutes and common law differently.
SECOND, the book fails to be entertaining when it discusses the confirmation process. The few times Bork really lets his anger bubble over, that anger seems so misdirected and has distorted his perception so much that his barbed arrows miss the mark. Most of his discussion is interesting and defensive but lacks the potential moments of schadenfreude—either the dwelling on his pain or his political opponents'—that one hopes for in such memoir-like writing or as indicated above, the kind of zealousness that one could enjoy, e.g., in A Moveable Feast, when Hemingway is unable to stop viciously attacking everyone for seemingly no reason.
In terms of flaws as a book, there are really two:
FIRST, Bork never sets out a positive vision of his jurisprudence. Over and over again, he says that one should use original intent because the Constitution is a law. While much of that may seem evident to non-specialists, much of it is heavily contested among practicing lawyers, judges, and scholars, and is not as readily evident as it appears. What does "original intent" mean in that sentence? What does "law" mean in that sentence? As a for instance, many individuals take Marshall's famous exhortation "[W]e must never forget that it is a Constitution we are expounding" to mean that the Constitution should be treated in a way different from a common statute. And to pun in a confusing way, most judges would consider it reasonable to treat common statutes and common law differently.
SECOND, the book fails to be entertaining when it discusses the confirmation process. The few times Bork really lets his anger bubble over, that anger seems so misdirected and has distorted his perception so much that his barbed arrows miss the mark. Most of his discussion is interesting and defensive but lacks the potential moments of schadenfreude—either the dwelling on his pain or his political opponents'—that one hopes for in such memoir-like writing or as indicated above, the kind of zealousness that one could enjoy, e.g., in A Moveable Feast, when Hemingway is unable to stop viciously attacking everyone for seemingly no reason.
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