Last Updated on June 19, 2019, by eNotes Editorial. Word Count: 314
We first need to start with a background on who Robert Bork is and why his writings are important to the study of US legal theory. Bork is a former Solicitor General and was a nominee of the Supreme Court by Ronald Reagan. Bork was seen as one of the more famous proponents of a legal theory known as originalism, which holds that the Constitution should be interpreted according to how the words were understood at the time of its writing or at the time of the writing of the specific Amendment. Similarly, originalists like Bork argue that laws and statutes should be interpreted according to their plain meaning.
Bork's nominee was controversial because of attacks by people like Senator Joe Biden and Senator Ted Kennedy. In fact this defeated nomination led to the creation of the term "borking" to refer to sinking a nomination using unfair tactics.
Bork's book lays out the problems that are associated with modern legal education and interpretation and the problems with so-called judicial activism and a Living Constitution. One problem Bork and other originalists have identified is that a living Constitution approach leads to the politicization of even the judiciary branch, which is supposed to be apolitical. For example, Bork would argue that decisions like Roe v. Wade, which legalized abortion across the United States, was made based off the supposed popularity of abortion, and not based off legal principles. For example, Bork believes strongly that the 10th Amendment, which delegates power to the state, is often ignored. Bork argues that topics like marriage, abortion, and other so-called social issues should best be dealt with at the state level, the laboratories of democracies.
The Tempting of America then explores these ideas and the consequences. Though written decades ago, his writings and warnings are important to read still to this day, where judicial nominations still bring out political fights.