REVIEW AND COMMENTARY

• DOI: http://doi.org/10.1111/j.1744-1714.1990.tb00837.x
• Date: 01 September 1990
• Author: Michael J. Phillips
• Published date: 01 September 1990

REVIEW AND COMMENTARY

*Michael

J.

Phillips

THE TEMPTING

OF

AMERICA: THE

POLITICAL

SEDUCTION

OF

THE

hw.

Robert

H.

Bork.

The

Free

Press,

1990.

432

pp.

A

month

or

so

after his nomination to the

U.S.

Supreme Court in

the

summer

of

1987,

Judge Robert Bork paid a courtesy call on Senator

Edward Kennedy. According to Bork, “Kennedy seemed mildly de-

pressed and was mostly silent” throughout the meeting.’ “Every

so

often,” Bork continues, “Kennedy looked up at me-about three

or

four times,

I

suppose -and said, ‘Nothing Perhaps Kennedy

was reacting

to

the artificiality

of

a meeting that was not going to

change his position on the nomination. Perhaps he even was embar-

rassed by his aggressive attack on the nomination some weeks earlier.3

Because that attack proved

so

effective, however, another explanation

suggests itself. Like the archetypal hit man who

tells

his victim that

*

Professor

of

Business Law, Indiana University.

I

R.

BOM,

THE

TEMPTING

OF

AMERICA: THE

POLITICAL

SEDUCTION

OF

THE

LAW

280

(1990).

Id.

at

28081.

According

to

Kennedy:

Robert

Bork’s

America is a land in which women would

be

forced into back-

alley abortions, blacks would

sit

at

segregated lunch counters, rogue police

could break down citizens’ doors in midnight raids, schoolchildren could not

be

taught about evolution, writers and artists would

be

censored at the whim

or

[sic] government, and the doors

of

the Federal courts would

be

shut on the

fingers

of

millions

of

citizens

for

whom the judiciary

is

often the only protector

of the individual rights that

are

the heart

of

our democracy.

Id.

at

268.

puoting

133

Cong. Rec. S918&S9189 (daily ed. July

1,

1987) (statement

of

Senator Kennedy).

500

I

Vol.

28

I

American

Business

Law Journal

the killing is "nothing personal" by asking him where he'd like the

bullet, Kennedy may have been suggesting that he was just doing

what he had to do.

In any event, Bork evidently did take the rejection of his nomination

personally-or at least resolved not to take it lying down. As a result,

we have

The Tempting

of

America.

The tempting to which Bork's title

refers, of course, is the temptation to politicize constitutional law by

abandoning the Constitution's original intent in favor of extraconsti-

tutional values. In this review, my main concern is with Bork's justi-

fications for his originalism

or

interpretivism." Before discussing these

justifications, however,

I

will briefly summarize the book.

THE

STRUCTURE

OF

THE

TEMPTING

The Tempting

of

America

contains three distinct sections through

which common themes reverberate. The

first

section is a fivechapter

historical tour of American constitutional law from the nation's origins

to the Rehnquist Court. Throughout this section, Bork emphasizes

decisions that exhibit the larger issues to which his book is devoted.

Although Bork concedes that the nineteenth century Supreme Court

hardly was apolitical, the picture he paints generally is one of increas-

ing judicial activism over time.

The Tempting's

second section

-

to me, the meat of the book

-

states

Bork's

interpretivist judicial method and defends

it

in a number of

ways. Many subjects treated within this section receive some discus-

sion below. One of these, Bork's depiction of his ex-colleagues in the

law schools, deserves brief mention

at

this point. In Chapter

9,

Bork

describes and attacks the different noninterpretivist theories advanced

by Alexander Bickel, John Hart Ely, Laurence Tribe: Justice William

Brennan, various Critical Legal Studies luminaries, and a host of others.

In the following chapter, he does much the same for activist proponents

of economic rights such as Bernard Siegan and Richard Epstein.

Throughout,

I

use these terms interchangeably

to

refer to

the view that in

constitutional

cases

courts should apply only those principles fairly derivable from the

text, structure, and history of the written Constitution.

Of Tribe, who actively opposed the nomination, Bork writes:

Laurence Tribe's constitutional theory is difficult to describe.

for

it

is

protean

and takes whatever form is necessary at the moment

to

reach a desired result.

This characteristic, noted by many other commentators, would ordinarily

disqualify him for serious consideration

as

a

constitutional theorist. But Tribe's

extraordinarily prolific writings and the congeniality

of

his views to

so

many

in the academic world and in the press have made him a force

to

be

reckoned

with in the world

of

constitutional adjudication.

For

that reason alone, he must

be discussed.

R.

BOW.

supra

note

1.

at

199.