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The Tempting of America

Robert H. Bork

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Jun 29, 2008 Werner rated it really liked it

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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 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. ...more

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