Book Write-Up: The Tempting of America, by Robert H. Bork

Robert H. Bork.  The Tempting of America: The Political Seduction of the Law.  Free Press, 1990.  See here to purchase the book.

Robert H. Bork was a professor at Yale Law School, a Solicitor General, and an appellate court judge in the District of Columbia.  In 1987, President Ronald Reagan nominated him to the U.S. Supreme Court.  He was a controversial choice, as many deemed him to be overly right-wing, and he was rejected by the U.S. Senate.  His historic confirmation battle is still mentioned when Republican Presidents nominate someone to the U.S. Supreme Court, including today, with President Donald Trump’s choice of Brett Kavanaugh.

In the Tempting of America, Bork explains his judicial philosophy of originalism.  Essentially, Bork maintains that courts should interpret the U.S. Constitution according to its original understanding, rather than their preferences for how the country should be.  He is critical of judicial attempts to create rights that are not explicitly in the U.S. Constitution, particularly the right to privacy, which undergirds Roe vs. Wade.  The book also has an autobiographical component, as Bork provides some details about his professional background and offers his own perspective on his confirmation battle, as well as its aftermath.  Not surprisingly, Bork believes that he was treated unfairly and that his record was distorted by his opponents.  He fears that the legacy of his battle is that judges will continue to create law from the bench rather than interpret it, and that legal scholars will be discouraged from being honest and open with their legal opinions as that could open them up to attack and distortion.

This review will comment on select chapters.  It will not be comprehensive, but it will highlight points that the chapters made, discussing when appropriate how they coincide with themes elsewhere in the book.

Chapter 1: “Creation and Fall”

This chapter opens with Bork’s critical look at an opinion by Justice Samuel Chase in 1798.  According to Bork, Chase “was prepared to strike down laws that violated no provision in any constitution, federal or state” (page 19).  Chase’s rationale flowed not from legal interpretation but rather from his concept of the “great first principles of the social compact” (Chase’s words).  Bork proceeds to narrate the origins of judicial review, the idea that the U.S. Supreme Court can review government laws and actions on the basis of their consistency or lack thereof with the U.S. Constitution.  This goes back to the 1803 U.S. Supreme Court decision, Marbury vs. Madison.  Bork states that, “In order to reach that issue, [Chief Justice John] Marshall had not only to ignore the fact that his Court had absolutely no jurisdiction, he had as well to distort the statute in order to make it a fit subject for a holding of unconstitutionality” (page 23).  Bork is still understanding about Marshall’s approach, as the United States was in its infancy and its structures and existence were on the line.  Now that the country is established, Bork does not believe that Marshall’s overreach should be applied by judges, though he does note that even judicial review supports the rule of law, not unelected judges’ subjective ideas about how the country should be.

The 1857 U.S. Supreme Court decision, Dred Scott vs. Sandford, exemplifies the poor legal reasoning that Bork criticizes.  Chief Justice Roger Taney declared that the slave Dred Scott needed to be returned to his slavemaster, even though Scott had been in a free state.  The reason was that Scott was the master’s property, and, under the Fifth Amendment, no one shall be deprived by the federal government of life, liberty, and property without due process.  Bork believes that Taney is misapplying the due process clause: it is about receiving a fair trial and has nothing to do with a person having an absolute right to property, free from federal intervention.  After the Fourteenth Amendment declared that states, too, cannot deprive people of life, liberty, and property without due process, the Supreme Court continued to misinterpret and misapply due process.  In the late nineteenth century, the U.S. Supreme Court struck down state regulations to protect workers, claiming that they violated liberty and property.  Bork’s discussion here coincides with a point that he makes elsewhere in the book: that judicial activism and overreach are not only things that liberals do, for conservatives have done them, too.

Chapter 2: “The New Deal Court and the Constitutional Revolution”

The Tenth Amendment establishes federalism: specific powers are given to the national government by the U.S. Constitution, and the powers not delegated to the national government are reserved to the states and the people.  Bork appears to see value in this principle: people could vote with their feet.  If they did not like how a state did things, they can move to another state.  The New Deal sought to centralize power in Washington D.C., and a number of judges thought that it exceeded the powers that the U.S. Constitution gave to the federal government.  The Supreme Court struck down certain laws of the New Deal as unconstitutional, but President Franklin Roosevelt eventually got justices on the Supreme Court who upheld his policies.  Bork believes that the new court misapplied the Commerce Clause, which permits Congress to regulate interstate commerce.  According to Bork, “a regulation of commerce had to be done for commercial reasons and not as a means of effecting social or moral regulation,” as the New Deal was doing (page 56).

Bork’s view on the role of the federal government is rather nebulous, at least in this book.  On the one hand, he seems to believe that the national government should only do what the U.S. Constitution specifies.  On the other hand, on page 147, he treats the 1964 Civil Rights Act as a legitimate statute, which expanded people’s rights beyond what the U.S. Constitution specified.  The U.S. Constitution prohibited federal and state discrimination against people on the basis of race but not private discrimination, as the Civil Rights Act did.  For Bork, legislation, not judicial activism, is the correct way to give people more rights than what are in the U.S. Constitution.  At some point in the book, Bork denies that the Supreme Court today should overturn the New Deal and the Great Society, as these have become established institutions in society and to overturn them would be catastrophic for the national order.  Roe vs. Wade, by contrast, is a polarizing decision, as people are divided over whether abortion should be legal, so Bork supports its overturn, thereby making abortion a matter for the legislature.  Overall, Bork believes that the courts should sin no more rather than dramatically overturning previous mistakes, but what does sinning no more mean?  Is Congress under the Tenth Amendment forbidden to create new welfare programs, or new federal attempts to solve problems?

Bork in this chapter also discusses the 1942 Supreme Court decision, Skinner vs. Oklahoma.  The Court here struck down an Oklahoma statute requiring the sterilization of two-time felons.  “A certain Skinner,” Bork narrates, “had been convicted of felonies three times, once for stealing chickens and twice for robbery with firearms” (page 62).  The Court ruled that this statute violated the Equal Protection Clause of the Fourteenth Amendment, as it distinguished what crimes deserved sterilization and what crimes did not: “The three-time larcenist was subject to sterilization, the three-time embezzler was not” (page 63).  Moreover, the law, according to Justice William Douglas, violated “one of the basic civil rights of man” (Douglas’s words).  Bork disputes the Court’s legal reasoning.  For one, the Fourteenth Amendment is about racial discrimination, not the right of states to distinguish among crimes.  Second, there is no constitutional right to fertility.

This is a difficult point-of-view to accept.  It resembles Bork’s views on other issues: there is no constitutional right for married couples to use birth control, there is no constitutional right to engage in homosexual sex.  A key question is this: are there basic human rights that go beyond what is explicitly in the U.S. Constitution?  Bork shares a story about a student asking him if, under his view, a state government could prohibit marriage, since a right to marry is not explicitly in the U.S. Constitution.  Bork replied that the framers would not have conceived that the government could be so tyrannical.  Should a belief that certain government acts are simply tyrannical guide courts in their assessment of laws, even if the U.S. Constitution does not explicitly touch on them?

The Ninth Amendment states that the Bill of Rights does not abrogate rights that are not explicitly in the U.S. Constitution.  Bork thinks that appeals to this argument are better than other legal scholars’ arguments against originalism that are out there.  Still, Bork believes that this argument, too, falls short.  The Ninth Amendment, he argues, was saying that the Bill of Rights does not abrogate rights that the states already recognize, not allowing federal courts to create new rights that are absent from the U.S. Constitution.

Chapter 3: “The Warren Court: The Political Role Embraced”

Bork in this chapter defends Brown vs. the Board of Education, the landmark decision that prohibited racial discrimination in public schools.  He has issues with the Warren Court’s rationale behind that decision, but he agrees with the decision itself.  Bork acknowledges that, originally, the Fourteenth Amendment was not intended to prohibit racially segregated schools.  Still, it was intended to prohibit the government from racially discriminating, and racially segregated public schools, in effect, were doing that.  This discussion coincides with Bork’s explanation of originalism: that it is not entirely about the original intent of the law’s framers but is also about what the law says, and the principle that the law sets forth.  Elsewhere in this chapter (and in the book), Bork will embrace a similar approach to what he does with Brown: he will say that there is a legitimate, originalist way to arrive at a progressive goal. He thinks that the Warren Court overreached in a decision about legislative districting, but he acknowledges that the Court can constitutionally challenge districting that severely undermines the rights of majorities to choose their own leaders.  He did not care for the reasoning that courts used to strike down discriminatory racial covenants, seeing it as arbitrary and detached from the law, but he did say that there was a legal basis to challenge racial covenants, due to statutes on the books.

Bork’s personal experiences and ideological evolution are mentioned in this chapter.  Bork tells a humorous story about a time when he was asked to redistrict a state.  He also talks about how he changed his mind on an issue of constitutional law: he used to believe that court decisions should follow a consistent neutral principle (liberty) in evaluating laws, but now he thinks that courts should simply stick with what the law says.

The right to privacy is introduced in this chapter.  Griswold vs. Connecticut struck down a law criminalizing the usage of contraception by married couples.  Bork states that this law was not taken seriously or rigorously enforced (he later says the same about the anti-sodomy law that Bowers vs. Hardwick affirmed), but that people decided to challenge it in order to advance their own sexually individualist agenda.  Bork argues that there is no right to privacy in the U.S. Constitution, and he notes that a lot of laws legitimately challenge privacy: people cannot use drugs in the privacy of their own homes, for example, or abuse their wives or kids.  Bork raises a good point there.  Still, the Constitution in the Third and Fourth Amendments does seem to value privacy.  Bork could say that the Fourth Amendment related to criminal investigations and not a general right to privacy, but perhaps a regard for privacy undergirds what the Fourth Amendment says about criminal investigation.

Speaking of criminal investigation, Bork is critical of the Warren Court’s decisions on the right to remain silent and the exclusionary rule.  He does not provide much detail in this discussion about the rationale for his views.  He seems to disagree mildly with the view that the Fourteenth Amendment applies to the states the Bill of Rights, and yet he accepts that as the lesser of two evils: it is better to say that the states must follow the Bill of Rights, than to say that courts can invent new rights that are not explicitly in the Constitution.

Chapter 4: “After Warren: The Burger and Rehnquist Courts”

Bork criticizes Supreme Court decisions that allowed for racial quotas, seeing those as violations of the Civil Rights Act.  He criticizes Roe vs. Wade.  He states that he himself does not support criminalizing homosexual sex but that states have a right to do so.  He states that a Texas law banning flag burning did not violate the First Amendment: “Texas had not prohibited the desecration of the American flag because the idea expressed was offensive but because the mode of expression was” (page 127).  The topic of the First Amendment will recur in this book.  Bork said that pornography was not protected by the First Amendment, yet he seemed to acknowledge that seemingly non-political speech or expression that is provocative may be protected because it is making a political statement.  Bork wrote that the First Amendment does not protect encouraging people to break the law, since the presumption behind the First Amendment is the rule of law: speaking out and debating what laws are appropriate for society.  People criticized Bork on this, saying that he was criticizing civil disobedience and that his view would entail that Martin Luther King, Jr.’s civil disobedience lacked First Amendment protection.  Bork replied that King was not undermining the rule of law but was challenging segregation laws as being inconsistent with the U.S. Constitution.

Chapter 7: “The Original Understanding”

Bork makes this clarification of original understanding on page 144: “If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest…When lawmakers use words, the law that results is what the words ordinarily mean.”

Chapter 8: “Objections to Original Understanding”

One argument Bork addresses is that the Constitution must change as society changes.  Bork asks a good question: can we truly say that society is changing on a given topic, when the Supreme Court is striking down laws that people through their representatives enacted?  For example, let’s take the death penalty.  Some argue that we are more civilized now and so we should interpret the Constitution as banning the death penalty, even though the Constitution presumes the legitimacy of the death penalty.  But Bork asks: is society now truly against the death penalty?  People through their elected representatives have supported it!  Bork does not think that liberal judges are following the new consensus of society but rather their own controversial morality, which cannot win at the ballot box.

A question that I wish Bork had addressed more deeply is how we can discern original intent, when the framers themselves seemed to disagree about aspects of constitutional interpretation.  Some preferred a strict interpretation of the Tenth Amendment, while others were not so strict.  Some thought that the First Amendment banned Congress from having chaplains, whereas others were not so draconian.

Chapters 14-16 contain Bork’s telling of his confirmation battle.  There were humorous anecdotes.  Bork says that he was patient in discussing the First Amendment with Senator Arlen Specter, and that people might mistake their conversation for a serious constitutional discussion, when Specter was completely missing Bork’s point.  Bork talks about Joe Biden’s withdrawal from the 1988 Presidential race due to charges of plagiarism, and how Biden told the embattled Bork that their situations were similar.  Bork could not see the similarity!  Bork also talks about how people have confused him with Surgeon General Koop, and Koop with him, because they both have beards!  Bork defends himself from the accusation that he consistently ruled against minorities and labor, highlighting numerous examples to the contrary.  He rejects that idea that he was outside of the mainstream, noting the Ivy League professors and Supreme Court justices who supported his nomination.

This review has not covered several of Bork’s attempts to refute arguments against originalism.  If Bork’s portrayal of those arguments is accurate, then those arguments are pretty weak!  The book could get tedious, but it is still worthwhile to read.