Ebook The Tempting Of America (The Political Seduction of the Law), by Robert H. Bork

Ebook The Tempting Of America (The Political Seduction of the Law), by Robert H. Bork

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The Tempting Of America (The Political Seduction of the Law), by Robert H. Bork

Ebook The Tempting Of America (The Political Seduction of the Law), by Robert H. Bork

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From Publishers Weekly

Bork, whom Reagan nominated unsuccessfully to the Supreme Court in 1987, combines here a history of the Court, a theory of how it should operate and a lengthy defense of his judicial record. He claims that virtually all Chief Justices, from those of the New Deal to Earl Warren--with his "unprincipled activism"--and beyond, have attempted to insert a "modern liberal agenda" into their decision-making. He argues that justices should apply the Constitution as its 18th-century ratifiers understood it, and that areas beyond federal powers should be left to the states to decide. Although Bork insists that the Court must apply judicial principles in a neutral, nonpolitical way, he acknowledges that his theory of constitutional praxis would probably favor the conservative policies promoted by Reagan and Bush. Conservatives will applaud this book, while those who opposed Bork's nomination will find here more reasons for having done so. Copyright 1989 Reed Business Information, Inc.

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From Library Journal

Bork portrays the Senate's rejection of his nomination to the Supreme Court as one skirmish in a broader battle over the political role of American judges. For a journalist's account of the nomination uproar, see Ethan Bronner's Battle for Justice: How the Bork Nomination Shook America ( LJ 9/1/89).-- Ed. On one side, Bork claims, are those who--regardless of personal convictions--adhere to the intentions of the Founding Fathers in interpreting the U.S. Constitution. Arrayed against them are various liberal groups and their allies in the law schools, who disdain the political process and promote judicial lawmaking to achieve their goals. Bork convincingly demonstrates that some opponents of his confirmation distorted his record and his views. However, in refusing to admit the good faith of opposing scholars, he does little to encourage dialog on constitutional interpretation.- G. Alan Tarr, Rutgers Univ., Camden, N.J.Copyright 1989 Reed Business Information, Inc.

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Product details

Hardcover: 432 pages

Publisher: Free Press; First Edition edition (November 15, 1989)

Language: English

ISBN-10: 0029037611

ISBN-13: 978-0029037614

Product Dimensions:

6.5 x 1.5 x 9.5 inches

Shipping Weight: 1.8 pounds (View shipping rates and policies)

Average Customer Review:

4.6 out of 5 stars

51 customer reviews

Amazon Best Sellers Rank:

#420,872 in Books (See Top 100 in Books)

The United States Constitution was written late in the eighteenth century when Enlightenment principles were dominant in the West. After more than two centuries, these principles have been supplanted by ideas from other philosophic schools in the thinking of Western elites. In "The Tempting of America," Supreme Court nominee Robert Bork asserts that rule by the Constitution as it was written has been supplanted by elites seeking to get unconstitutional political results they favor by imposing their own values not found in the Constitution through legislating from the bench instead of applying the law as the Founders wrote it.Bork recognizes that judges have tried for centuries to make law instead of apply it but that the problem has worsened in the last century and especially in the postwar era. The author takes the reader through much of the history of the Supreme Court, using both famous and obscure cases to show how the country had reached the norm of judicial activism or judicial tyranny, depending on your point of view, by 1990 when this book was written.Judge Bork explains why using the original understanding of the Constitution is the only valid and proper way to adjudicate, but examines the theories of specific revisionists and points out the problems with those theories. The author also looks at common rationalizations for abandoning original intent and notes the drearily-by-now-familiar penchant of the Left to attack motives instead of positions.The author recalls his 1987 nomination to the Supreme Court, defends his record on the bench on hot-button issues of the day, and tells why the Left strove so hard to take down his nomination. Bork's keen intellect is on display throughout the book, which comes to the depressing conclusion that the runaway judiciary will not be reined in, which we know a generation later has not in fact happened. The Constitution is included as an appendix to this superb book that sheds light on one of the most baneful problems the country has faced for decades and still faces today.

Make sure that you have a dictionary nearby in order to save yourself a bunch of getting up to find one when you read this.........but it is worth it if you want to fully understand the only proper way to apply our Constitution and why that is the ONLY way. He is a brilliant man who weighs in on this topic in a very informative way.

Robert Bork would have added stature to the Supreme Court that for the most part has so often been found to be lacking. Robert Bork's thoughts that he expressed in his book were clearly the Ideas of America's founding fathers, and also the thoughts of.most Americans until Progressive ideology was introduced into America's class rooms.. America's fes won't like Robert Bork's book but those who who want to understand what has happened to America will love America and what needs to be done to restore this countries greatness will.

Well thought out and made significant points regarding the law.

Great reading if one want to delve into why we are in the shape we are as a country.

This book makes interesting reading. I have to confess up front that I don't agree with much of what Bork stands for in terms of his constitutional methodology. But, having said that it does make for fascinating reading and should be on the "must-read" list for anyone interested in the practice of law.The book gives great insight to the debate between those who take very different views of constitutional interpretation: the originalists v. those who view the Constitution as "alive."Highly recommended reading, especially if you disagree with his interpretive methods!!!

“Nonsense is nonsense however heavily weighted with academic robes.’’ (163)No wonder Bork unpopular!“This results-first, premises-to-follow form of legal “reasoning” is to law what Robert Frost called free verse, ‘tennis with the net down.’ There are no rules, only passions.’’ (263)This an excellent metaphor! ‘Tennis without rules’.“The function of the Justices … is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law, and … in the thought and the vision of the philosophers and the poets. The Justices will then be fit to extract “fundamental presuppositions” from their deepest selves, but in fact from the evolving morality of our tradition.’’ A. M. Bickel. (189)Bork presents this as the best argument of his adversaries. Bork explains why opposed. . .“The interpretation of the Constitution according to the original understanding, then, is the only method that can preserve the Constitution, the separation of powers, and the liberties of the people. Only that approach can lead to what Felix Frankfurter called the - “fulfillment of one of the greatest duties of a judge, the duty not to enlarge his authority. That the Court is not the maker of policy but is concerned solely with questions of ultimate power, is a tenet to which all Justices have subscribed.’’‘Court should not make laws’ is the faith proclaimed. However . . .“But the extent to which they have translated faith into works probably marks the deepest cleavage among the men who have sat on the Supreme Bench.’’ (158)Well . . .making law is so. . .so. . .much more fun!Another fundamental opinion . . .“There are, however, persons who make more radical objections to the idea of seeking the historic meaning of the Constitution. They contend not that we cannot know in detail the Founders’ intentions, but that we cannot even understand the principles they intended, because they lived in an entirely different society.’’ (163)This verbal, textual nihilism ‘we can’t understand anything or anyone - ever - is destructive. Bork explains . . .“The claim is preposterous. Compare it with the treatment we give other writings not of our generation. In a commencement address at Duke University, Ted Koppel spoke to the issue, albeit in a different context:“What Moses brought down from Mt. Sinai were not the Ten Suggestions. They are commandments. Are, not were. The sheer brilliance of the Ten Commandments is that they codify in a handful of words acceptable human behavior, not just for then or now, but for all time. Language evolves. Power shifts from one nation to another. Messages are transmitted with the speed of light. Man erases one frontier after another. And yet we and our behavior and the commandments governing that behavior remain the same.”Who doubts the Ten Commandments reflect human life? Many oppose, even fight them, but people have applied them for thousands of years. (I have read, analyzed, taught them to my grandson from childhood. Understands fine.)“The Commandments were written in another language, given to a people of an entirely different culture, and are almost four thousand years old, and yet the claim is that we can understand them. The constitutional originalist asks only for two hundred years concerning a document written in English and coming out of our culture, however much material conditions may have changed.’’ (163)Yep.“Nor is the argument assisted greatly by the analogy to antitrust. It has been suggested from time to time that antitrust courts should intervene when the economic market is, in Ely’s words, “systematically malfunctioning” or, in other words, displays “market failure.” The difficulty is that, except in cases where avoidable monopoly replaces competition, the concept of market failure usually means no more than that the market is producing results the critic disapproves of on grounds that ultimately turn out to be moral or aesthetic.’’ (196)Really?“The market failure concept has not proved to be very useful in antitrust. When an economist found an industry structure he did not like, he immediately pronounced market failure. General Motors once had about half of the American automobile market, and the literature was rife with market failure analyses by people unwilling to entertain the notion that GM had that share because more customers wanted its cars than other makes. Then the Japanese arrived, and the market’s failure disappeared. It had never been anywhere but in the eye of the beholder to begin with.’’ (196)‘Antitrust in eye of beholder’.Bork devotes many chapters to prominent professors . . .“Harvard is apparently a hotbed of revisionist law professors. In addition to Laurence Tribe, Professor Frank Michelman has long been working on a theory that would make welfare payments a constitutional right that would-be recipients could enforce in court. Professor Richard Parker finds our present democracy in a state of “corruption,” which asserted condition he regards as warrant enough for courts to use the Constitution to remake society. He promises a new constitutional theory that will - “take seriously and work from (while, no doubt, revising) the classical conception of a republic, including its elements of relative equality, mobilization of the citizenry, and civic virtue.”Why does this sound . . .sound familiar? Well . . .“This sounds a bit like a Court-managed version of the French Revolution.’’ (206)That’s it!Also . . .“Harvard law school is also a stronghold of Critical Legal Studies, a nihilistic neo-Marxist movement that views all law as oppressive and political. It is nihilistic because its members typically demand the destruction of current doctrine and hierarchies as illegitimate, but they acknowledge that they have no notion of what is to replace this society. To give the reader some flavor of the mood of these folk, I once attended a lecture by one of its leading Harvard proponents, which he concluded by saying:“The first year of law school is designed to destroy the minds of the students. It does that by asking them to reconcile the irreconcilable and to justify an obviously unjust society.”“Sanford Levinson, of the University of Texas law school, advances an extremely skeptical, indeed nihilistic, theory of “constitutional” interpretation. Levinson says that “The ‘death of constitutionalism’ may be the central event of our time, just as the ‘death of God’ was that of the past century.”Maybe the ‘death of god’ lead to ‘death of law’.“In a major law review article, Levinson explains that “for a Nietzschean reader of constitutions, there is no point in searching for a code that will produce ‘truthful’ or ‘correct’ interpretations; instead, the interpreter, in [philosopher Richard] Rorty’s words, ‘simply beats the text into a shape which will serve his own purpose.’” (216)‘No code, no truth’. Wow! These are lawyers? I THE SUPREME COURT AND THE TEMPTATIONS OF POLITICS1 Creation and FallThe First Principles of the Social CompactThe Divided John MarshallChief Justice Taney and Dred Scott: The Court Invites a Civil WarThe Spirit of the Constitution and the Establishment of JusticeJudicial Activism in the Service of Property and Free Enterprise2. The New Deal Court and the Constitutional RevolutionRoosevelt Fails, Then Succeeds, in Remaking the CourtThe Court Stops Protecting FederalismEconomic Due Process AbandonedThe Discovery of “Discrete and Insular Minorities”3. The Warren Court: The Political Role EmbracedArrested Legal RealismBrown v. Board of Education: Equality, Segregation, and the Original UnderstandingPoll Taxes and the New Equal ProtectionCongress’s Power to Change the Constitution by StatuteThe Right of Privacy: The Construction of a Constitutional Time Bomb4. After Warren: The Burger and Rehnquist CourtsThe Transformation of Civil Rights LawJudicial Moral Philosophy and the Right of PrivacyThe First Amendment and the Rehnquist Court5. The Supreme Court’s TrajectoryII THE THEORISTS6. The Madisonian Dilemma and the Need for Constitutional Theory7. The Original UnderstandingThe Constitution as Law: Neutral Principles Neutrality in the Derivation of PrincipleNeutrality in the Definition of PrincipleNeutrality in the Application of PrincipleThe Original Understanding of Original UnderstandingThe Claims of Precedent and the Original Understanding8. Objections to Original UnderstandingThe Claim that Original Understanding Is UnknowableThe Claim that the Constitution Must Change as Society ChangesThe Claim that There Is No Real Reason the Living Should Be Governed by the DeadThe Claim that the Constitution Is Not LawThe Claim that the Constitution Is What the Judges Say It IsThe Claim that the Philosophy of Original Understanding Involves Judges in Political Choices“The Impossibility of a Clause-Bound Interpretivism”9. The Theorists of Liberal Constitutional RevisionismAlexander M. BickelJohn Hart ElyLaurence TribeMore Liberal Revisionists of the ConstitutionJustice William J. Brennan, Jr.10. The Theorists of Conservative Constitutional RevisionismBernard SieganRichard A. EpsteinJustice John Marshall HarlanA Judicial Philosophical Free-for-All11. Of Moralism, Moral Relativism, and the Constitution12. The Impossibility of All Theories that Depart from Original Understanding13. In Defense of Legal Reasoning: “Good Results” vs. Legitimate ProcessIII THE BLOODY CROSSROADS14. The Nomination and the Campaign15. The Hearings and After16. The Charges and the Record: A Study in ContrastsThe Civil Rights of Racial MinoritiesThe Civil Rights of Women Big Business, Government, and LaborFreedom of Speech Under the First Amendment17. Why the Campaign Was Mounted18. Effects for the Future ConclusionAppendix: The Constitution of the United States of AmericaNotesTable of Works CitedTable of Cases Index“That is why what is being written and taught in our law schools matters. That is why it is important to understand that the spectacular efflorescence of modern constitutional theory is not a sign of vigor and health but in reality is the brilliant flower of decay.’’“Where the law stops, the legislator may move on to create more; but where the law stops, the judge must stop.’’ (151)This is Bork’s focus. Yes, legal, judicial, moral ideas are difficult and obscure. Therefore, be modest and make less law!“Among the reasons, as reported in James Madison’s notes, was the objection raised by Elbridge Gerry of Massachusetts that it -“. . . was quite foreign from the nature of the office to make them judges of policy of public measures.” Rufus King, also of Massachusetts, added that judges should “expound the law as it should come before them, free from the bias of having participated in its formation.” Judges who create new constitutional rights are judges of the policy of public measures and are biased by having participated in the policy’s formation.’’ (153)The corrupting acid of power.“What is more remarkable is that so much of the scholarly literature takes the same form. In article after article one reads arguments, offered as though they were devastating refutations, which consist of nothing more than a list of desirable decisions the principles of the historic Constitution could not have produced. The fact that this argument can be taken seriously indicates the decayed state of today’s academy. It is a demonstration that law is being seduced by politics and is thereby losing its integrity as a discipline. If it continues on this course, law will cease to be what Holmes named it, the calling for thinkers, and become merely the province of emoters and sensitives.’’ (261)Bork’s worry that ‘law losing integrity’. Wrote this in 1990. Well . . .Conclusion-“The difference between our historically grounded constitutional freedoms and those the theorists, whether of the academy or of the bench, would replace them with is akin to the difference between the American and the French revolutions.’’The lesson of the two revolutions is profound.“The outcome for liberty was much less happy under the regime of the abstract “rights of man” than it has been under the American Constitution. What Burke said of the abstract theorists who produced the calamities of the French Revolution might equally be said of those, judges and professors alike, who would remake our constitution out of moral philosophy: “This sort of people are so taken up with their theories about the rights of man that they have totally forgotten his nature.”“Those who made and endorsed our Constitution knew man’s nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask that our judges adhere.’’ (356)Concludes book with several chapters on his failed confirmation hearings. Revealing.Bork is easy to read. Writing for the general reader, not lawyers or scholars. He doesn’t assume knowledgeable reader.Reader will need serious interest and extended concentration.Clear, persuasive, convincing, firm without arrogance.

historically useful

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