The Tempting of America: The Political Seduction of the Law. - book reviews

National Review, Dec 22, 1989 by Orrin G. Hatch

WHEN PRESIDENT REAGAN nominated Robert H. Bork to the Supreme Court in the summer of 1987, a carefully staged firestorm of opposition erupted, although no question was ever raised about Judge Bork's qualifications. But those who would manipulate the law to their own political ends knew that they would have no friend in Bob Bork were he confirmed. Their misrepresentations of his record denied Bork a seat on the Court, but their short-term victory was Pyrrhic. Bork is back.

The Tempting of America discusses that confirmation battle, but only briefly. The heart of the book deals with the very nature of judging, and so with the future of this nation. For those who have followed Robert Bork's distinguished career-as law professor, Solicitor General of the United States, Judge of the U.S. Court of Appeals for the District of Columbia, and prolific writer on legal subjects-this book has been eagerly awaited. Seldom have high expectations been so completely fulfilled. It is a work of monumental dimension, and addresses the central legal question of our time: Are we to be governed by our elected representatives, as the Constitution explicitly provides, or by an unelected judiciary?

Judge Bork believes that federal judges are required, in interpreting the Constitution, to enforce that document as its language dictates, and as its meaning was originally understood. I will not attempt to further elaborate on the theory of original understanding, which Judge Bork himself explained in the last issue of NR, except to point out that he gives a succinct, irrefutable answer to those who cite authorities other than the language of the Constitution: "The truth is that the judge who looks outside the historic Constitution always looks inside himself and nowhere else." The theory of original understanding (also "interpretivism") is democracy in essence, and deviation from the theory"noninterpretivism," in the scholarly jargon-is nothing less than a surrender to the anti-democratic forces that prefer, in Judge Bork's words, "rule by talented and benevolent autocrats over the self-government of ordinary folk."

In a lengthy historical treatment, Bork demonstrates in detail the regrettable consequences that have usually followed when the original understanding has been abandoned. He cites the Court's creation of a constitutional right to own slaves (Dred Scott v. Sanford), its rejection of a state law protecting workers from unreasonably long working days (Lochner v. New York), its formulation of a right to abortion (Roe v. Wade), and its remarkable conclusion that burning an American flag is a form of constitutionally protected speech (Texas v. Johnson). He might also have mentioned the Court's rejection of the original understanding of the Establishment Clause which allowed it to prohibit prayer in public schools (Engle v. Vitale).

He also exposes the legal elite, many in academia, who are currently shaping our laws to serve their ideologies, and effectively demonstrates the peculiar way in which those scholars are "simultaneously sophisticated and anti-intellectual." Still, he treats the dissenters seriously, and discusses the most prominent theorists of constitutiona"now regnant in the law schools." Each theorist asks, in essence, What is so bad about allowing judges-the elite of our legal profession-to decide questions of law pursuant to their own philosophies of good and evil? Here, Bork answers with the observation that this approach asks judges to be moral philosophers, not lawyers. While the idea might appeal to some, it contains an inherent flaw. As Bork notes, "if the people can be educated to understand and accept a superior moral philosophy, there would be no need for constitutional judges since legislation would embody the principles of that morality." And an additional irony has not escaped Judge Bork's comment: "If the greatest minds of our culture have not succeeded in devising a moral system to which all intellectually honest persons must subscribe, it seems doubtful, to say the least, that some law professors will make the breakthrough any time soon."

Suffice it to say, Bork discusses the academic theorists with a critical eye, and after disposing of the liberals, he takes on the conservative revisionists in a further, even-handed critique. As a truly consistent intellect, Bork summarizes the point by stating:

If the performance of the Court changes, it is to be hoped that liberal revisionism will not be replaced by conservative revisionism. The two are equally illegitimate. The Constitution is too important to our national well-being and to our liberties to be made into a political weapon.

Of course, Bork's critique is not limited to academics but condemns all infidelity to the Constitution, including that which occurs in Congress. Based on his own experience, he states that "many senators have no idea that constitutional law is about anything other than results they like." I wish I were able to say he is wrong, but, regrettably, there is truth to the criticism.