The Tempting of America

by Robert H. Bork

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Last Updated September 5, 2023.

Robert Bork's The Tempting of America is a book about the relationship between the courts—especially the US Supreme Court—and the law. Bork, a conservative jurist who is perhaps most famous for his role in Watergate—as acting Attorney General he fired special prosecutor Archibald Cox—and his rejection as a Supreme Court nominee under Ronald Reagan. Bork's basic thesis in the book is that the federal judiciary has departed from the original intent of the Constitution, a development he considers dangerous and out of step with the majority of Americans.

Bork is a conservative, so many of the "characters" in the book are liberal justices. He is especially biting in his criticism of Chief Justice Earl Warren. Under Warren's stewardship, the Supreme Court handed down dozens of landmark decisions that Bork finds objectionable due to their liberal slant and their departure from the text of the Constitution. These decisions included Brown v. Board of Education, a "great" decision according to Bork, but one supported by a "weak opinion" that did not adequately demonstrate why de jure segregation violated the Constitution. Many of the Warren Court's subsequent decisions (Reynolds v. Sims, for example, which "restructured" state government with its "one person, one vote" requirement) are even more questionable to Bork. As the justice who most explicitly "embraced" the "political role," Warren is a central character, and given Bork's overall thesis, a crucial figure in the "tempting" of the courts to bring politics into constitutional law.

Another "character" in the book is Chief Justice Warren Burger, whose court issued the Roe v. Wade decision, one that Bork characterizes as a blatant case of "judicial usurpation . . . of democratic prerogatives." Beginning with Griswold v. Connecticut and culminating with Roe, Bork argues, the Court invented a "right to privacy" that cannot be justified by the Constitution. Other figures are important in Bork's narrative, including James Madison, whose view of the roles of the legislature and the courts is central (according to Bork) to the author's thinking. Bork describes a "Madisonian dilemma" created by the Constitution, in which the courts have to consider the will of the majority alongside the limits on popular will established by the Constitution. Bork argues that the Courts should not, as a general rule, contradict the will of Congress in particular.

The Founders, especially Madison, loom large as characters in Bork's analysis. Bork is an "originalist," meaning that he places great emphasis on the original intent of the framers of the Constitution as well as the will of the people. He claims that a right to privacy, for example, is a chimera inasmuch as it is not covered by the Constitution. Attempts to read such a right into the Constitution, then, are motivated by politics and the self-confidence of intellectuals, including legal scholars who embrace an expansive role for the courts and reading of the Constitution. Of course, Bork himself is a central figure in this debate—it was one reason his confirmation was defeated—and The Tempting of America is his response to his critics, an attempt to weigh in on the debate over the direction the courts, and American society itself, were headed in the 1990s. Thus he is a major character in his own narrative.

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