The Tempting of America Read online

  “THE TEMPTING OF AMERICA SHOULD BECOME A CLASSIC IN THE PUBLIC DEBATE ABOUT WHO GOVERNS AMERICA AND HOW.”

  —William French Smith Former Attorney General of the United States

  “The Tempting of America is an intellectual history of the Supreme Court and the Constitution which is also Robert Bork’s autobiography, so dedicated has been his entire life to the theory and practice of American justice. He formulates the issues of our time with clarity and precision, but, more than that, he provides a model of the love of ideas and discussion, as well as the capacity for friendship, in the service of the common good. He is never doctrinaire, for he is always concerned with the most difficult and awe-inspiring of endeavors, judging our citizens justly.”

  —Allan Bloom Author of The Closing of the American Mind

  “This book demonstrates the qualities of intellect and character that caused me to nominate Robert Bork to the Supreme Court.”

  —Ronald Reagan

  “Seldom have high expectations been so completely fulfilled. It is a work of monumental dimension and addresses the central legal question of our time.”

  —National Review

  “ROBERT BORK’S BOOK IS AN INTELLECTUAL TOUR DE FORCE THAT IS MUST READING FOR ALL AMERICANS.”

  —Griffin B. Bell Former Attorney General of the United States

  “This brilliant defense of ‘original understanding’ of the constitution is profound, learned, and sophisticated, yet written with a style and passion that make it absorbing. If it is as widely read as it deserves to be, it may prove a greater contribution to the ‘life, liberty, and pursuit of happiness’ of future residents of the U.S. than Judge Bork could have made as a great Supreme Court Justice.”

  —Milton Friedman Nobel Laureate in Economics

  “This is a fabulous book. It talks carefully, even lovingly, about law as an institution rooted in tradition and human nature. In the process it explains why people ought not to think of the Supreme Court as a sort of modern Moses, created to proclaim laws and deliver the downtrodden to a new promised land.”

  —The Washington Times

  “Bork is an engaging intellect and he defends his position with admirable scholarship.”

  —San Francisco Chronicle

  “THE TEMPTING OF AMERICA WOULD MAKE AN IDEAL INTRODUCTION TO THE CURRENT RELATIONSHIP BETWEEN THE LAW AND POLITICS IN AMERICA FOR A YOUNG MAN OR WOMAN ABOUT TO ENTER ONE OF OUR NATION’S LAW SCHOOLS.”

  —The Wall Street Journal

  “The Tempting of America is more than an excellent introduction to the issues involved in the present crisis in constitutional law. Judge Bork has written a book that is like a fire bell in the night. We might feel more comfortable to roll over and go back to sleep—but we dare not do it. If this is read as widely as it deserves to be, he may have performed an even greater service for this country than he could have on the high bench.”

  —New York Daily News

  “When a mind as keen as Robert Bork’s encounters an adversary as formidable as the liberal legal establishment, the result is combustion. This is a book of great power and illumination.”

  —Charles Krauthammer, Columnist

  “The Tempting of America is an extremely valuable book that puts the constitutional controversies of our time—in which his nomination was only one episode—in the larger context of a cultural struggle between the traditional values of the American people and the values which the intellectual elite want imposed on them.”

  —Thomas Sowell, Hoover Institution

  TOUCHSTONE

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  New York, NY 10020

  www.SimonandSchuster.com

  Copyright © 1990 by Robert H. Bork

  All rights reserved, including the right of reproduction in whole or in part in any form.

  First Touchstone Edition 1991

  TOUCHSTONE and colophon are registered trademarks of Simon & Schuster Inc.

  Manufactured in the United States of America

  7 9 10 8

  Library of Congress Cataloging-in-Publication Data

  Bork, Robert H.

  The tempting of America: the political seduction of the law / Robert H. Bork.

  p. cm.

  Includes bibliographical references and index.

  1. Judicial power—United States. 2. Judicial review—United States. 3. Political questions and judicial power—United States. 4. United States—Constitutional law—Interpretation and construction. I. Title.

  KF5130.B59 1991

  347.73′12—dc20

  [347.30712] 90-19275

  CIP

  ISBN 0-02-903761-1

  ISBN 0-684-84337-4 (Pbk)

  eISBN 978-1-4391-8886-6

  To my wife, MARY ELLEN, and to my children, ROBERT, JR., CHARLES, and ELLEN

  Excerpts

  The author and the publisher gratefully acknowledge permission to reprint excerpts from the following publications:

  Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution. 93 Yale L. J. (1984). Reprinted by permission.

  Roy P. Basler, ed., 4 The Collected Works of Abraham Lincoln (1953). Copyright © 1953 by The Abraham Lincoln Association. Reprinted by permission of Rutgers, the State University of New Jersey.

  Alexander M. Bickel, The Least Dangerous Branch. First published in 1962 by the Bobbs- Merrill Company, Inc. Copyright © 1986 by Josephine Ann Bickel. The Morality of Consent. Copyright © 1975 by Joanne (Josephine Ann) Bickel. Reprinted by permission.

  Robert Bolt, A Man for All Seasons (1960). Copyright © 1960, 1962 by Robert Bolt. Reprinted by permission of Random House, Inc.

  Hon. William J. Brennan, Jr., Georgetown University Speech (Oct. 12, 1985), reprinted in The Great Debate: Interpreting Our Written Constitution (1986). Reprinted by permission.

  Paul Brest, The Fundamental Rights Controversy, 90 Yale L. J. (1981). Copyright © 1981 by Paul Brest. The Misconceived Quest for the Original Understanding, 60 B. U. L. Rev. (1980). Copyright © 1980 by Paul Brest. Reprinted by permission.

  David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888 (1985). Reprinted by permission of University of Chicago Press.

  William A. Donohue, The Politics of the American Civil Liberties Union (1985). Copyright © 1985 by Transaction Publishers. Reprinted by permission of Transaction.

  John Hart Ely, Democracy and Distrust (1980). Copyright © 1980 by the President and Fellows of Harvard College. Reprinted by permission of Harvard University Press.

  Felix Frankfurter, ed., The Commerce Clause under Marshall, Taney, and Waite (1973). Copyright © 1937 the University of North Carolina Press. Reprinted by permission.

  Thomas C. Grey, Eros, Civilization, and the Burger Court, 43 Law & Contemp. Prob. (1980). Reprinted by permission.

  Milton Handler, The Supreme Court and the Antitrust Laws: A Critic’s Viewpoint, 1 G. L. Rev. (1967). Reprinted by permission.

  Maurice J. Holland, A Hurried Perspective on the Critical Studies Movement: The Marx Brothers Assault the Citadel, 8 Harv. J. L. & Pub. Pol’y. (1985). Reprinted by permission.

  Paul Hollander, The Survival of Adversary Culture (1988). Copyright © 1988 by Transaction Publishers. Reprinted by permission of Transaction.

  Robert W. Jenson, Churchly Honor and Judge Bork, DIALOG, vol. 27, no. 1, Winter 1988. Reprinted by permission.

  Ted Koppel, The Last Word, Commencement Address at Duke University, Durham, North Carolina (May 10, 1987). Reprinted by permission of Ted Koppel.

  Hilton Kramer, Studying the Arts and the Humanities: What Can Be Done? THE NEW CRITERION, February 1989. Reprinted by permission.

  Sanford Levinson, Law a
s Literature, 60 Texas L. Rev., no. 3 (1982). Copyright © 1986 by the Texas Law Review. Reprinted by permission.

  Alasdair MacIntyre, After Virtue: A Study in Moral Theory (2d ed.) (1984). Copyright © 1981, 1984 by Alasdair MacIntyre. Reprinted by permission.

  Michael W. McConnell, Book Review of Morality, Politics, and Law by Michael Perry, 98 Yale L. J., no. 7 (1989). Reprinted by permission of The Yale Law Journal Company and Fred B. Rothman and Company.

  Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. (1988). Copyright © 1988 by the Directors of the Columbia Law Review Association, Inc. All Rights Reserved. Reprinted by permission.

  Richard A. Posner, The Constitution as Mirror: Tribe’s Constitutional Choices, 84 Mich. L. Rev. (1986). Reprinted by permission.

  Arch Puddington, The Soul of the Left’s Machine, THE NATIONAL INTEREST, no. 13, Fall 1988. Copyright © 1989 by National Affairs, Inc. Reprinted by permission.

  Jeremy Rabkin, Class Conflicts over Civil Liberties, THE PUBLIC INTEREST, Fall 1984. Reprinted by permission.

  David A. J. Richards, Constitutional Privacy and Homosexual Love, 14 N. Y. U. Rev. L. & Soc. Change (1986); Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L. J. (1979). Copyright 1979 Hastings College of the Law; The Moral Criticism of Law (1977). All reprinted by permission.

  Clinton Rossiter, ed., Alexander Hamilton, The Federalist, No. 78 (1961). Reprinted by permission of New American Library.

  Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. (1989). Reprinted by permission.

  Arthur M. Schlesinger, Jr., The Supreme Court: 1947, FORTUNE, vol. 35, no. 1. Reprinted by permission from Fortune Magazine; © 1947 Time Inc.

  Joseph Story, Commentaries on the Constitution of the United States (1987) (1833). Reprinted by permission of Carolina Academic Press.

  Harold Taylor, Students Without Teachers: The Crisis in the University (1969). Reprinted by permission of McGraw-Hill.

  Laurence H. Tribe, American Constitutional Law (2d ed.) (1988). Reprinted by permission of Foundation Press and of the author.

  Mark Tushnet, The Dilemmas of Liberal Constitutionalism, 42 Ohio St. L. J. (1981). Reprinted by permission.

  Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. (1959). Reprinted by permission.

  About the Author

  Robert H. Bork received undergraduate and law degrees from the University of Chicago and served in the U.S. Marine Corps. He has been a partner in a major law firm, taught constitutional law as the Alexander M. Bickel Professor of Public Law at the Yale Law School, served as Solicitor General and as Acting Attorney General of the United States, and as Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit, before his nomination by President Reagan to the Supreme Court. He and his wife live in Washington, D.C., where he is John M. Olin Scholar in Legal Studies at the American Enterprise Institute.

  Contents

  Acknowledgments

  Introduction

  I THE SUPREME COURT AND THE TEMPTATIONS OF POLITICS

  1. Creation and Fall

  The First Principles of the Social Compact

  The Divided John Marshall

  Chief Justice Taney and Dred Scott: The Court Invites a Civil War

  The Spirit of the Constitution and the Establishment of Justice

  Judicial Activism in the Service of Property and Free Enterprise

  2. The New Deal Court and the Constitutional Revolution

  Federalism and Sick Chickens

  Roosevelt Fails, Then Succeeds, in Remaking the Court

  The Court Stops Protecting Federalism

  Economic Due Process Abandoned

  The Discovery of “Discrete and Insular Minorities”

  Laying the Foundation for Substantive Equal Protection

  3. The Warren Court: The Political Role Embraced

  Arrested Legal Realism

  Brown v. Board of Education: Equality, Segregation, and the Original Understanding

  One Person, One Vote: The Restructuring of State Governments

  Poll Taxes and the New Equal Protection

  Congress’s Power to Change the Constitution by Statute

  Applying the Bill of Rights to the States

  The Right of Privacy: The Construction of a Constitutional Time Bomb

  4. After Warren: The Burger and Rehnquist Courts

  The Transformation of Civil Rights Law

  Judicial Moral Philosophy and the Right of Privacy

  The First Amendment and the Rehnquist Court

  5. The Supreme Court’s Trajectory

  II THE THEORISTS

  6. The Madisonian Dilemma and the Need for Constitutional Theory

  7. The Original Understanding

  The Constitution as Law: Neutral Principles

  Neutrality in the Derivation of Principle

  Neutrality in the Definition of Principle

  Neutrality in the Application of Principle

  The Original Understanding of Original Understanding

  The Claims of Precedent and the Original Understanding

  8. Objections to Original Understanding

  The Claim that Original Understanding Is Unknowable

  The Claim that the Constitution Must Change as Society Changes

  The Claim that There Is No Real Reason the Living Should Be Governed by the Dead

  The Claim that the Constitution Is Not Law

  The Claim that the Constitution Is What the Judges Say It Is

  The 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 Revisionism

  Alexander M. Bickel

  John Hart Ely

  Laurence Tribe

  More Liberal Revisionists of the Constitution

  Justice William J. Brennan, Jr.

  10. The Theorists of Conservative Constitutional Revisionism

  Bernard Siegan

  Richard A. Epstein

  Justice John Marshall Harlan

  A Judicial Philosophical Free-for-All

  11. Of Moralism, Moral Relativism, and the Constitution

  12. The Impossibility of All Theories that Depart from Original Understanding

  13. In Defense of Legal Reasoning: “Good Results” vs. Legitimate Process

  III THE BLOODY CROSSROADS

  14. The Nomination and the Campaign

  15. The Hearings and After

  16. The Charges and the Record: A Study in Contrasts

  The Civil Rights of Racial Minorities

  The Civil Rights of Women

  Big Business, Government, and Labor

  Freedom of Speech Under the First Amendment

  17. Why the Campaign Was Mounted

  18. Effects for the Future

  Conclusion

  Appendix: The Constitution of the United States of America

  Notes

  Table of Works Cited

  Table of Cases

  Index

  Acknowledgments

  This book could not conceivably have been finished without the assistance of a great many people.

  Steven Calabresi, my research associate for the past year, was indispensable in every aspect of the work: discussion of ideas, suggestions, comments on drafts, research, and organizing volunteers. Mr. Calabresi was my law clerk during the 1984-85 term of the U.S. Court of Appeals for the District of Columbia Circuit.

  Margaret Tahyar, Andrew McBride, and Clark Remington did extensive research and provided invaluable suggestions. They came to my chambers as clerks in the summer of 1987 and stayed with me as research associates upon my departure from the bench in February of 1988. Ms. Tahyar and Mr. McBride subsequently commented extensively on drafts of the manuscript. John Harrison and Peter Keisler, who clerked for me
in 1982-83 and 1985-86, respectively, also read and commented upon drafts.

  Judy Carper, who was also my secretary when I was a judge, prepared and repeatedly revised the manuscript on the word processor and also handled the seemingly endless administrative tasks with great skill.

  The following individuals put in many arduous hours assisting in different phases of producing the manuscript: Daniel E. Troy, Brent O. Hatch, John F. Manning, and Bradford R. Clark, who clerked for me at the Court of Appeals in 1983-84, 1984-85, and 1985-86, respectively; Lawrence J. Block, Barbara K. Bracher, Allyson E. Dunn, Keith M. Dunn, Edward D. Hearst, John M. Kleeberg, Gary S. Lawson, Lee S. Liberman, David M. McIntosh, Eugene B. Meyer, Mark R.A. Paoletta, David B. Rivkin, Jr., Simon S. Saks, E. Jane Wallace, and Henry Weissmann.

  My special thanks go to Irving Kristol and Gertrude Himmelfarb, who read the manuscript and offered both good advice and encouragement. My publisher at The Free Press, Erwin Glikes, was an extraordinarily skillful, perceptive, and sympathetic editor. Eileen DeWald, managing editor at The Free Press, and Shirley Kessel, who assisted with the index, also did a superb job in their respective tasks. Robert Barnett, as my lawyer and literary agent, gave excellent advice about the mysterious world of publishing and drafted a contract highly satisfactory to all concerned.

  I owe a debt of gratitude that hardly can be repaid to the people who helped.

  Thanks are due to the American Enterprise Institute, which houses and supports me, and to the John M. Olin Foundation, whose grant makes that support possible. My personal thanks go to Christopher C. DeMuth, the President of AEI, and to William Simon, President of the Olin Foundation. The views expressed in this book are my own and not necessarily those of the American Enterprise Institute, the Olin Foundation, or the persons who assisted in its production.

  Introduction

  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. In this quest, politics invariably tries to dominate another discipline, to capture and use it for politics’ own purposes, while the second subject—law, religion, literature, economics, science, journalism, or whatever—struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, become politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the “correct” political outcome.