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on February 5, 1999
Robert Bork has written a masterpiece defending the "original understanding" of the American constitution as the ONLY valid approach to constitutional understanding. In his introduction, Bork describes how American institutions have struggled with the temptation of politics and egalitarian outcomes. He sets the tone with the following passage:
"In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."
Judge Bork traces many movements of the Supreme Court from its beginning, through the new deal and into the Warren, Burger and Rehnquist courts, focusing on the slow slide away from original understanding the framers intended. He then devotes several chapters to original understanding, objections to original understanding and various alternative constructions to original understanding. He completes the book with an examination of the political processes mobilized to keep him from being appointed to the Court by President Reagan. I'm no lawyer, and hardly a major student of the constitution. Still, I found this a compelling book which I pick up again and again. I must agree with the Chicago Tribune's review, "A conservative legal classic"!
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on March 19, 2004
How I wish I had read this book before I took con law. Not only would it have been good preparation, but it would also have given me the ammunition to argue positions that I felt where intuitively correct. Even at my school, the Constitution is presented to students loaded with assumptions the framers never had in mind. And although I think that, given the political reality of the world, our professors would be doing us a disservice if they didn't present it so, it is still hard to reconcile the discrepancies that surface while staying within the parameters of modern constitutional thought. Robert Bork masterfully and eloquently blows away all the false assumptions and everything begins to make sense.
This book is truly a classic of American legal thought. It is the best argument for an original intent understanding of the Constitution that I have ever read. Bork also illustrates the politicization of our law in vivid detail by recounting his nomination for a seat on the Supreme Court and his defeat in the Senate. Still, though I understand the the slippery slope concomitant with looking beyond the four corners of the Constitution, Bork couldn't convince me that the Ninth Amendment is superfluous.
Everyone in law school should read this; especially before taking con law. You'll thank me for the tip!
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on March 25, 1999
To make a long story short, the media did an first-rate hatchet job (one of the best of all time) in painting this balanced, admittedly conservative (judicial restraint etc.), and extremely fair minded jurist as some sort of crazy, backwards racist. Judge Bork has more legal acumen than several justices sitting on the Court right now. His clear and concise overview of substantive due process and the slippery slope of unwarranted judicial expansion that began with Lochner v. New York (where the Court overturned a state law which set hourly labor standards) to Griswold v. Conn., which created a "right to privacy" out of thin air, is basic Constitutional Law 101 that even non-lawyers or the general public should be familiar with. Bork makes in this book the same case that he was simply unable to fully articulate on TV and in the Senate confirmation hearings: The Constitution gives the power of the Judicial Branch to interpret, not to make the law. It sounds plain enough, but when you read this, you (should)realize that one of the all-time biggest media smears caused an injustice to be done to this wise judge.
Bork is dry in spots here, but certainly not as dry as your average law school textbook or basic court opinion.
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on November 30, 2000
This book has forever changed how I look at the judicial branch of government, namely by showing that the greatest threat to the rule of law in the United States occurs when the judiciary takes on legislative functions.
As Robert Bork explains in this book, there are key differences between legislators and judges which make it vital that judges do not usurp legislative authority. When the judiciary creates the law instead of merely applying it, democratic representative government is replaced by judicial oligarchy. Because Supreme Court judges are unelected, appointed for life, and exercise a governmental power which is virtually unchecked, their decisions can threaten the rule of law when the justices choose to depart from the law in favor of their own moral philosophies.
Robert Bork presents a litmus test for all judges to use when extrapolating legal principles from legislation and the Constitution: these principles must be neutrally derived, neutrally defined, and neutrally applied. This doesn't mean that the Constitution itself or other legislation is neutral, but it does mean that when judges hear a case, they must defer their personal moral philosophies to the rule of law. The law must provide the standard of neutrality which the judge is to apply, not the judge's own subjective views.
This book is a masterpiece of judicial analysis. Robert Bork not only builds an excellent case for his thesis, but addresses the major arguments against his thesis in a way that bolsters his argument's credibility. This book examines the phenomenon of judicial activism superbly, not only offering criticism, but presenting a logical solution.
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on February 20, 2002
It's hard to imagine a neutral opinion about Robert Bork. Mostly, he is exalted or dismissed because of supposed political views he holds. Liberals dispise his 'anti-abortion' record and conservatives cheer his 'pro-religion' stance. For the record, he is a conservative libertarian (if there really is such a thing) but those who are looking for political argument will find none here.
In fact, he admirably restrains with a capital 'R' from political discussion in this book. Instead, he outlays his judicial philosophy of 'original intent'; quite simply, the judge as an extention of a law as seen by its original legislators. Unfortunately, this leads to some results that make modern day liberals cringe. Abortion, private discrimination and the like are nowhere in the constitution thus becoming state and personal issues under amendment X (how many people really pay attention to that amendment anyhow?). Despite these results, Bork insists on judicial neutrality aware that the legislature is the ONLY branch that should have their eye on results. The judiciary simply takes the WRITTEN law and upholds it.
The only thing I have a problem with is that sometimes Bork takes a strict textual approach and sometimes not, For example, his view of the 'equal protection' clause as a procedural, not a substantive issue relies strictly on the text of the fourteenth amendment. It would stand to reason that his first amendment view should also rely on text but 'Congress shall make no law..' apparently wasn't what the founders really meant after all.
For those not schooled in the current debate over various methods of constitutional interpretation, I would read Jack Rakove's "Interpreting the Constitution" and maybe Antonin Scalia's "Matter of interpretation" first as more views are given than in this book. Again, I stress, if you are looking for Bork's assertion of political views, THIS IS NOT THE BOOK!! Read his other one.
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on January 13, 1997
There are those who believe judges are incorruptable, whose
judgment is beyond question and whose fairness is a given. . .
and then there are those who know better. Robert Bork not only
knows better, but he tells us how the judicial system has
become corrupted by the infectious agenda of political
correctness. Bork speaks with the authority of one who
knows. His book sounds a warning call to those who love
the law, and who suspect the judiciary may very well have
transformed itself into the most dangerous branch of government.
Paul J. Walkowski, Author, "From Trial Court to the United States Supreme Court"
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on March 5, 2008
Complaints? This book is a heavy, intellectual read, not for the faint of heart. It merits attention and study--but it will reward your efforts ten-fold.

Now for the good stuff: After I read Bork's book, I told fellow law students there were few law school courses I would not trade for it. I only wish I had read it before sitting through Constitutional Law.

Yet the book would be worth the reading for anyone interested in the law. It is likely the most complete and well-reasoned statement of the conservative position (and arguably the historical "American" position) on judicial philosophy, legal practice, and several key political doctrines, including the separation of powers, federalism, and the Madisonian system. He begins:

"In the Past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. . . . It is coming to be denied that anything counts, not objectivity, not even intellectual honesty, that stands in the way of the `correct' political outcome."

He goes on to describe the greatest threat to the law today:

"In the law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice . . . is not embodied in a statute or any provision of the Constitution. He then must choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."

Bork argues that these result-oriented decisions have moved holdings steadily to the left for the last half century. As a result, many Americans do not like those outcomes and are no longer "deceived by the claim that those results are compelled by the actual Constitution." Soon the law may go the way of the press, Bork fears, losing legitimacy with a large part of the public. And conservative activism would only make it worse.

"Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . There are only two sides. Either the Constitution and statutes are law, which means their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win."

Bork answers a likely question: "What does it mean to say a judge is bound by the law?" It means he is bound by the only thing that can be called law: the principles of the text, whether Constitution or statute, as generally understood at the enactment." He notes that the lay reader may wonder at this statement. Isn't that obvious?

"Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively and eruditely denied by constitutional sophisticates, particularly those who teach the subject in law schools."

Here, Bork argues, commonsense is sound. He quotes Justice Story. "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill or visionary speculation."

Bork resumes: "Story might have been addressing today's constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the Constitution or the American public. That, surely, is the point of their efforts."

Some of my most engaging law school professors saw everything as relative, and the law as an evolutionary force, changing the times and changing with the times. Any appeal to original intent is an appeal to something not only irrelevant but also unknowable. (Of course, the original intent of a contract is evident from the four corners of the document, right? But that's not possible with the Constitution apparently, nor are the numerous speeches and ratifying conventions any help.) Here Bork concedes a distinction. For hair splitters, sure--original intent "calls for speculation." But the ORIGINAL UNDERSTANDING is not at all hard to determine. The reason so many are unhappy with the doctrine of original understanding is not--as they claim--that they have philosophical questions about epistemology. Activists deride appeals to original understanding because they fear such a rule would never have won for them the great civil rights cases of the late 20th century--and those they hope yet to win.

But Bork disagrees. Here his book becomes a tremendous resource. He examines the history of the Court and most of the great cases, explaining that many revisionist cases could have reached the same results through an appeal to original understanding and would have strained logic less in doing so. BROWN V. BOARD OF EDUCATION is the most stunning example Bork cites of a case in which the Court felt compelled to look outside the original understanding of the Constitution when it did not need to. The result is that the century's most immediately, even dangerously controversial decision was based on an argument few could accept. It need not have been this way. Bork's discussion of the this point alone will be worth the price of the book for some.

Bork has no raging desire to see the poor cases overturned, however. Out of respect both for stare decisis and the integrity of the Court itself, Bork would not even reverse the most badly reasoned case of the 20th century, ROE V. WADE. To be more precise, Bork places Roe in a group of cases "so embedded in the life of the nation, so accepted by society, so fundamental to the . . . expectations of individuals . . . that the result should not be changed now." (*I believe he has since modified this position.)

This brings up another interesting issue. Bork makes the case for judicial integrity, the most important commitment of any judge. The temptation to fudge the law to help bad facts is one the judge must resist, because any time the law is compromised, it is weakened. The judge's task is simple:

"In a constitutional democracy the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge. The sole task of the latter--and it is a task quite large enough for anyone's wisdom, skill, and virtue--is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist."

WHO IS ROBERT BORK TO TALK ABOUT A DISCIPLINED JUDICIARY, ABOUT PERSONAL OR PROFESSIONAL INTEGRITY, some will ask. The second half of his book addresses just that. He describes in detail the nomination process he endured and the lies told about him in the campaign to keep him off the bench. For example, his position in a number of cases was exactly the opposite of the way it was described in the hearings. He received a ringing endorsement from the ABA before taking a seat on the D.C. Court of Appeals. Once there he decided a number of cases in favor of women and minorities. But in the Senate confirmation hearings he was asked, "Why are you against women?" He repeatedly directed Senators Kennedy, Biden, and others to the pages in the opinions proving he had in fact held exactly the opposite. But as they say, a lie told often enough begins to seem true--and such was the case with the lies told about Bork. During one private moment of peculiar candor, Ted Kennedy shook Bork's hand and said, "Nothing personal." Then they vilified him.

Bork's book then, is his public defense. In that it is unique. Not only did the Reagan administration do little to defend him, so unprepared were they for the unprecedented campaign to destroy a judicial nominee, but Bork himself made no public defense.

"The public interest generated by the enormous campaign against me caused dozens of reporters to seek interviews, and television and radio talk programs repeatedly asked me to appear. Despite the unanswered hostile campaign, I decided that it was improper for a judicial nominee to wage a counter campaign by discussing his views on substantive issues anywhere before the Senate, even if it meant letting slanders go unanswered."

Toward the end White House strategists plead with Bork and his wife to appear on a Barbara Walters special. "But . . . we decided we would rather go down than compromise ourselves with what would be, in effect, a personal media appeal." White House advisors thought this a serious mistake; some thought it cost him a seat on the bench. "However that may be, I continue to think that was the right decision.

"The entire process of a judicial confirmation was politicized more than ever before in America's history, but at least I did not contribute to that."
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on January 8, 2003
Bork does a terrific job of making a logical argument in favor of interpreting the Consitutuon (and any other law) according to the original understanding of the legislators who ratified it. He cites numerous examples of judicial legislation, in which the originial intentions of various laws were ignored by Justices in favor of those Justices' opinions of what "ought to be," and by showing how this trend has become more common since the New Deal, demonstrates that the policization of the courts is a growing problem.
He also makes several salient points about the so-called "right to privacy," supposedly created by various amendments between 1 and 14, and points out that the ninth and tenth amendments, by acknowledging that rights may exist outside of what is written in the Constitution, refer to rights that are...outside the Constitution. You can argue, if you believe it, that we have a right to privacy; what you can't argue is that we have a Consitutional Right to Privacy, because it's not in the Constitution. I'm pretty sure that the Framers could have placed a generalized "right to privacy" in its own separate amendment if they had really intended it to be there. Any claim that the Constitution supports such a right is a projection of one's personal beliefs onto an otherwise unambiguous document, and Bork's whole point is that judges should not decide cases based on their personal beliefs, they should rule on the text of the law.
That said, at times Bork can be redundant, which makes for a somewhat longer book than is strictly necessary. Also, the discussion of his nomination battle, while fascinating in its own right, is really an entirely different book- it's more about answering his critics' charges (which he does by referring to his conclusions elsewhere in the book)than about an originalist understanding of the Constitution. It is interesting to read, though, and because it's sectionalized, readers can skip that part if they want to (though I wouldn't recommend doing so). All in all, a very interesting and thought-provoking book.
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on December 27, 2004
As a law student in my final year of law school, I have taken three courses dealing with constitutional law from professors who are experts in the field. In "The Tempting of America," Judge Bork brilliantly sums up the evolution of judicial activism. You learn of the transformations this activism has undergone, and Judge Bork provides an excellent analysis of the landmark cases demonstrating such activism (Dred Scott; Lochner; Roe v. Wade; etc.-in other words, essentially all the key cases you'd need to know about).

From this backdrop, Judge Bork moves into his argument in favor of "original understanding" of the Constitution. Now, perhaps I am a little biased in that I was already in agreement with this theory prior to reading this book, but nevertheless Judge Bork details the most compelling argument in its favor that I've read yet. In addition, unlike many books on the subject, Judge Bork chronicles the arguments against "original understanding" and the arguments specifically in favor of other theories of constitutional interpretation.

I would highly recommend irrespective of your legal education. While it may be a little tougher read for those untrained in the law, it will provide such valuable insight that it is worth the effort.

***UPDATE***

Reflecting on this review several years later, my admiration for "The Tempting of America" remains unchanged. That said, several books have since been published which further this important debate. Still more have been published in that time which painfully distort the tenents of Originalism, choosing (by design or ignorance) to build wonderful straw man arguments and then grandly rebuke them. Here is a short list of more recent books that I found to be worthwhile contributions (regardless of whether I wholly agreed with the variations of Originalism presented therein):

1. Constitutional Interpretation, by Keith E. Whittington. For that matter, anything written by K. Whittington is superb.

2. Originalism: A Quarter-Century of Debate, by Steven Calabresi. A very informative collection of arguments for and against Originalism drawn from Federalist Society panels.

3. Restoring the Lost Constitution: The Presumption of Liberty, by Randy E. Barnett. An interesting look at Originalism. Plus, R. Barnett is an interesting and relevant figure right now because of his position in the intellectual vanguard over the debate re the constitutionality of the 2010 healthcare reform.

Finally, be sure to keep up-to-date on the Originalism debate through the free resource of the Social Science Research Network (SSRN). This free database provides access to most of the current and important law review articles on the subject. I would highly recommend any relevant articles by the authors listed above, plus: Michael Stokes Paulsen, Michael W. McConnell, Frank H. Easterbrook, and Lawrence B. Solum. For a more progressive take on Originalism, the best authors out there are Jack Balkin and Akhil Reed Amar.

I hope these comments, admittedly beyond the scope of the subject book, will be of assistance to those of you interested in the Originalism debate.
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VINE VOICEon November 22, 2000
It's Two! Two! Two books in one!
The primary function of this book is as a brilliant defense of Judge Bork's philosophy of original understanding and an excoriating polemic against judicial intervention. Surveying the entire history of American jurisprudence, Bork takes on interventionists of the Left and of the Right and makes an irrefutable case for the proposition that judicial intervention is a threat to the very functioning of the Republic. As you read his arguments and watch him marshal the facts, it's easy to understand why his nomination to the Supreme Court became such a political crucible. We lost the opportunity to have a really first class mind shape the Court for a generation when he was defeated.
That entire ugly confirmation fight makes up a kind of book within the book. It is excruciatingly painful to read this section, as genuine ... like Ted Kennedy and Howard Metzenbaum and Joe Biden sit in judgment on Bork in the Judiciary Committee hearings. I can understand why the Left thought it was so important to keep him off of the bench, but the lengths they went to, including lies, character assassination and invasion of privacy, are really sickening and continue to reverberate through our politics today, to noone's benefit.
This is an important book by a decent man who was done wrong.
GRADE: A+
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