The Tempting Of America: The Political Seduction Of The Law is written by Robert H. Bork. Judge Bork has had a long and distinguished career in the law. He has worked in private practice, held a professorship, and served on the D C Court of Appeals before being nominated to the Supreme Court by President Regan.
Judge Bork is an intellectual of the first rank. His is the first nomination I can remember and of which I took a personal interest. I followed the confirmation proceedings and his defeat in the full Senate. I believed then and still do that it was a travesty and our nation suffered a great loss when he was refused a place on the Supreme Court.
Some years back I read another book by Judge Bork entitled, Slouching Toward Gomorrah. The book captured my attention for two reasons. 1. The author. 2. The title. The book detailed and validated a view that I had long held. The sixties generation brought about a cultural revolution that has left this nation spinning out of control; a revolution that we have yet to reap the full consequences. Judge Bork's systematic critique of the decade of the sixties and early seventies is insightful.
So when I saw this book in a used bookstore I laid hold of it. As one might suspect from the title the book thoroughly addresses how the law (the courts) are suffering from having been seduced by politics. The law has been and is being politicised both in the way decisions are reached particularly as it relates to Constitutional theory, the role of judges, and the process by which judges are nominated and confirmed for the federal judiciary.
His personal experience which is addressed in the last few chapters is a telling story of politics run amok. The liberals in the Senate (Republican and Democrat) did us no favors in the way they handled Judge Bork's nomination.
The book is a fairly easy read. Judge Bork possess a dry sense of humor that you will miss if you are not paying close attention. Because so much of the book deals with Constitutional theory and how judges reach decision there are numerous court cases referred to. It can at times, for people who are not accustomed to following these things closely, be difficult to keep track. I do not mean to imply that the book is dry, mechanical, or technical. It is readable and provides a rich education for anyone who is willing to read with thoughtfulness by one of the greatest legal minds in the nation.
He follows the history of the High Court in relation to relevant decisions that they have made that have slowly altered the way people perceive the Constitution and the way Judges apply the Constitution.
He deals at length with how we arrived at a general "right to privacy" in the Constitution. A right that does not exist and the Constitution does not protect. The Constitution does protect certain aspects of our privacy. The Court has taken those specific protections and built and established a doctrine of "the right to privacy." When the fact is all of us knows that no one has an absolute right to privacy. You cannot murder in private. You cannot molest children in private. You cannot rape in private. You cannot steal in private. You cannot do these thing even in the privacy of your own bedroom. Consequently the right of privacy has been a major weapon in the cultural war to protect perversion of all kind and to forbid citizens the right to self-government through their elected Representatives. So now when Judges believe people ought to have the right to do something they can simply argue the "right to privacy" and other jurisdictions are forbidden to legislate in those areas. The Constitution identifies the areas where we have a right to privacy. Every other area is to be determined though the democratic process put in place by our Founders.
He also deals at length with the perversion of the "due process" clause of the 5th and 14th amendments. The "due process" clause in both amendments were for the purpose of ensuring a fair process. The Court has changed the idea of a simple due process into a substantive due process. That is, not only must the process be fair the outcome must be equal. The Founders (responsible for the 5th amendment) and the ratifiers of the 14th amendment did not have in mind an equal outcome but a fair process. The court now largely has a theory that if the outcome is not equal then the process could not have been fair. They embrace this theory even though we all know that a fair process will produce unequal outcomes. It is upon such faulty reasoning that the Court has in the past upheld the idea of quotas. The truth is if you strive for an equality of outcome you will naturally have to upset the balance of a fair process and in doing so someone loses their Constitutionally protected right to "due process." In fact this is not even an issue that should be applied to the private sector. It is the government that is Constitutionally required to provide "due process." In the private sector these issues are to be determined by the people through their elected Representatives.
He also addresses the illogical charge that you cannot legislate morality. I am amazed that people would argue such a thing. We legislate because we are a moral people and all legislation is rooted in a system of morality. Morality is legislated, it is to be legislated, and our Founders expected and practiced as much. The only areas that are off limits or at least should be are the one that the Constitution specifically protects.
The book brought some clarity of thought to the whole process of the purpose of the Constitution. To state it simply the Founders did a simple thing. They established a government where men rule themselves through their elected Representatives. If we do not like the laws then we must change the people who are making them. It is not the responsibility of courts to change stupid laws, unwanted laws, immoral laws, unfair laws but only unconstitutional laws. The Constitution simply identifies certain areas that are off limits to the democratic process. We cannot vote to elect Representatives every four years or senators every three years. That is off limits. We cannot vote to let everyone print their own money. We cannot vote in a State Denomination. We cannot forbid people to own and use guns. Except where the Constitution places something off limits every area is subject to legislation.
Judge Bork's position is if the Constitution is silent then the judge must be silent. It must be left to the legislators. In fact if we decide we do not like what the Constitution says there is a process in place for changing it. But.......it is not to be changed by a Court but through the amendment process.
It is too bad that Judge Bork's book is not required reading in Civics classes around the country. But we are too busy getting ready for Friday night Football and the Prom to give serious attention to the preservation of our Constitutional Republic. Consequently we are losing the privilege of self-government and are slowly being shackled to an oligarchy of nine judges!
I suppose this ended up being maybe more commentary than book review. I enjoyed and benefited from this book immensely. Much of what Judge Bork addresses I already had problems with but now I feel as though I am more thoroughly acquainted with the whys. My positions have been made stronger. I have attempted to put in my own words several things I learned from this book. If I have misrepresented Judge Bork's views that has not been my intention. The book was delightfully intellectually stimulating and has better equipped me to examine the issues that effect us all.
I would heartily recommend this book. There are three sections, eighteen chapters and 355 pages.