The Tempting of America

by Robert H. Bork

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Last Updated September 5, 2023.

Former US Court of Appeals Judge and one-time Acting Attorney General Robert H. Bork analyzes the constitutional bases of US law, arguing that politics has gotten in the way of interpretation. He believes that his understanding of the law is closer to the Founding Fathers’ intentions. One motivation for defending his position was his congressional rejection for a seat on the Supreme Court.

Judge Bork explains the differences of opinion as what he calls the “Madisonian dilemma” that relates to the opposing principles in the US constitutional, or Madisonian, system. Congress and the president, both elected, have the responsibility carry out the people’s will, but constitutional guarantees of rights limit the majority’s power. Bork views that a judge is responsible, when evaluating cases regarding the constitution, Bork’s opinion, the judge must, in constitutional cases support majority rule unless individual rights are specifically mentioned. This is especially significant because, in his opinion, judges have more power than other people in government, even congress or the president.

[J]udges possess power that comes closer to being absolute than that held by any other actors in our system.

One of the points that the congressional committee raised was protection of the First Amendment, specifically the right of freedom of speech, which many saw that Bork had not defended vigorously enough. He explains how he balances restrictions compared with absolute freedom. His belief is that the majority view should be observed even if infringes upon minorities’ positions. Judge Bork’s position on pornography and obscenity places much of the decision-making power on individual communities as to what they might ban.

I thought pornography as well as its most extreme form, obscenity, did not deserve constitutional protection, that its availability should be left to the political community.

The question of right to privacy is one area that Judge Bork addresses extensively because he believes it does not occur in the constitution. Its absence, therefore, means it cannot be relied on as the basis for any valid judicial decisions. This particularly applies to the 1973 Roe v. Wade ruling on the unconstitutionality of making abortion illegal. He refers to earlier cases, regarding such diverse matters as child labor and marriage, that the Supreme Court cited in regard to abortion, stating that they did not apply.

Marshaling these decisions as if they were precedents merely emphasized the absence of support for the right. The invented right of privacy has not been applied in any Supreme Court case other than ones involving contraception.

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