The Tempting of America: The Political Seduction of the Law.

WHEN PRESIDENT REAGAN nominated Robert H. Bork to the Supreme Court in the summer of 1987, a carefully staged firestorm of opposition erupted, although no question was ever raised about Judge Bork's qualifications. But those who would manipulate the law to their own political ends knew that they would have no friend in Bob Bork were he confirmed. Their misrepresentations of his record denied Bork a seat on the Court, but their short-term victory was Pyrrhic. Bork is back.

The Tempting of America discusses that confirmation battle, but only briefly. The heart of the book deals with the very nature of judging, and so with the future of this nation. For those who have followed Robert Bork's distinguished career-as law professor, Solicitor General of the United States, Judge of the U.S. Court of Appeals for the District of Columbia, and prolific writer on legal subjects-this book has been eagerly awaited. Seldom have high expectations been so completely fulfilled. It is a work of monumental dimension, and addresses the central legal question of our time: Are we to be governed by our elected representatives, as the Constitution explicitly provides, or by an unelected judiciary?

Judge Bork believes that federal judges are required, in interpreting the Constitution, to enforce that document as its language dictates, and as its meaning was originally understood. I will not attempt to further elaborate on the theory of original understanding, which Judge Bork himself explained in the last issue of NR, except to point out that he gives a succinct, irrefutable answer to those who cite authorities other than the language of the Constitution: "The truth is that the judge who looks outside the historic Constitution always looks inside himself and nowhere else." The theory of original understanding (also "interpretivism") is democracy in essence, and deviation from the theory"noninterpretivism," in the scholarly jargon-is nothing less than a surrender to the anti-democratic forces that prefer, in Judge Bork's words, "rule by talented and benevolent autocrats over the self-government of ordinary folk."

In a lengthy historical treatment, Bork demonstrates in detail the regrettable consequences that have usually followed when the original understanding has been abandoned. He cites the Court's creation of a constitutional right to own slaves (Dred Scott v. Sanford), its rejection of a state law protecting workers from unreasonably long working days (Lochner v. New York), its formulation of a right to abortion (Roe v. Wade), and its remarkable conclusion that burning an American flag is a form of constitutionally protected speech (Texas v. Johnson). He might also have mentioned the Court's rejection of the original understanding of the Establishment Clause which allowed it to prohibit prayer in public schools (Engle v. Vitale).

He also exposes the legal elite, many in academia, who are currently shaping our laws to serve their ideologies, and effectively demonstrates the peculiar way in which those scholars are "simultaneously sophisticated and anti-intellectual." Still, he treats the dissenters seriously, and discusses the most prominent theorists of constitutiona"now regnant in the law schools." Each theorist asks, in essence, What is so bad about allowing judges-the elite of our legal profession-to decide questions of law pursuant to their own philosophies of good and evil? Here, Bork answers with the observation that this approach asks judges to be moral philosophers, not lawyers. While the idea might appeal to some, it contains an inherent flaw. As Bork notes, "if the people can be educated to understand and accept a superior moral philosophy, there would be no need for constitutional judges since legislation would embody the principles of that morality." And an additional irony has not escaped Judge Bork's comment: "If the greatest minds of our culture have not succeeded in devising a moral system to which all intellectually honest persons must subscribe, it seems doubtful, to say the least, that some law professors will make the breakthrough any time soon."

Suffice it to say, Bork discusses the academic theorists with a critical eye, and after disposing of the liberals, he takes on the conservative revisionists in a further, even-handed critique. As a truly consistent intellect, Bork summarizes the point by stating:

If the performance of the Court changes, it is to be hoped that liberal revisionism will not be replaced by conservative revisionism. The two are equally illegitimate. The Constitution is too important to our national well-being and to our liberties to be made into a political weapon.

Of course, Bork's critique is not limited to academics but condemns all infidelity to the Constitution, including that which occurs in Congress. Based on his own experience, he states that "many senators have no idea that constitutional law is about anything other than results they like." I wish I were able to say he is wrong, but, regrettably, there is truth to the criticism.

Bork does a very interesting job of contrasting noninterpretivism with his own approach in a review of pertinent cases. This historical survey reveals that the principal engine driving the anti-interpretivist school-whether liberal or conservative-has been the doctrine of "substantive due process." There are, Bork points out, two forms of the doctrine: The first consists in applying the substance of various provisions of the Bill of Rights against state legislation on the theory that the Fourteenth Amendment's due-process clause "incorporates" those provisions. [Were it not] for the incorporation, the Bill of Rights would restrain only the Federal Government. This theory has at least the merit of confining the courts to the enforcement of principles actually in the Constitution. There is, however, a second form of substantive due process in which courts create principles of freedom-freedom to own slaves, freedom to make contracts-that are nowhere to be found in the Constitution. It is proper that the Court recede from its highly interventionist stance under this second version, because it involves pure judicial legislation.

His survey clearly reveals the roots of the judicial activism that is plaguing our courts today. He concludes that the theory of substantive due process has "provided a warrant for later Courts to legislate at will." Once again, Bork is the champion, where the Constitution is silent, of upholding the constitutional plan for representative democracy. He is an advocate of federalism, embodied in the Tenth Amendment.

Of course, some of the new rights created by the Supreme Court over the past 130 years have been beneficial, and should be supported when statutorily enacted, or made part of a state's own constitution. The principle of one man, one vote will strike some as a good example. When the Court mandated in the early 1960s that all state legislatures must be organized by per-capita representation-outlawing apportionment according to geographical boundaries-they clearly invented a rule out of thin air, as Bork demonstrates at some length; the rule, whatever its effects for good or ill, is simply not in the Constitution. I should know. As a member of a legislative body where the citizens of the Dakotas have exactly the same representation as the combined populations of California and New York, I am regularly reminded of the groundless nature of the Court's view that representation on a basis other than equal population is somehow antithetical to American values. Indeed, the organization of the Senate, by the principle of equality of the states, enjoys a remarkably exalted status among American values: it is the only right that, under the terms of Article V, cannot be amended out of the Constitutionexcept with the consent of the affected state.

My favorite chapter in this book of favorite chapters is "The Supreme Court and the Temptations of Polities," where one who highlights as he reads, as I do, must highlight virtually every paragraph, line, and word on every page. Repeatedly, the point is made, and illustrated through fine examples, that the Court has been frequently seduced by the siren song of substantive due process, thus second-guessing the moral choices of the nation's voters and their elected representatives, and substituting a system of value that is none other than the personal preference of the judges.

"What is worrisome is that so many of the Court's [frequent] declarations of unconstitutionality are not even plausibly related to the actual Constitution. This means that we are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own."

He concludes: "when the Court decides it is the instrument of the general will and the keeper of the national conscience . . . there is no law . . . only the moral imperatives and self-righteousness of the hour."

Despite the sometimes technical nature of the subject, The Tempting of America is aimed at a general reader interested in the forces shaping American law. Time and again, Bork cogently states in the simplest terms what legal scholars have done their best to obscure, and by placing the story of his own ordeal in the larger context of the war waged for the minds of the nation's judges, Bork has invested the book with a significance that no simple autobiographical account could have had. I must leave to others, who are not members of the Senate, the discussion of Bork's justified criticism of the Judiciary Committee hearings and subsequent floor vote. But I must say he is accurate and yet genteel about those who denied him a place on the bench, and thereby rejected one of the century's most able and astute jurists.

I suppose revisionists will argue that Bork has an unusual, if not unseemly, devotion to the infallibility of the original text of the Constitution. However, it is his contentionand mine as well-that this grand document has endured (and will endure) for the benefit of all long after the feeble whimperings of those so bent on revising it have faded.

It is rare that those at the center of history happen also to be great scholars or writers of a talent sufficient to explain momentous events. Churchill is the outstanding exception to the rule. Now we know that Judge Bork is another.