A judicious brief for the proposition that the Constitution and federal statutes are law, not ""malleable texts"" that...


THE TEMPTING OF AMERICA: The Political Seduction of the Law

A judicious brief for the proposition that the Constitution and federal statutes are law, not ""malleable texts"" that judges may rewrite to ensure that particular groups or causes prevail. In print, Bork (whose nomination to the Supreme Court unleashed an ideological firestorm in mid-1987) proves an eloquent, even elegant, advocate. Using the doctrine of original understanding as a contextual framework, the author first decries what he deems an accelerating trend toward making the federal bench a political institution by offering a case-law history of the bellwether Supreme Court, from its inception to the present day. Bork next casts a cold eye on the precepts of conservative as well as left liberal revisionists who seek to justify (and facilitate) judicial activism. In a concluding section, he considers his own failed candicacy for a seat on the High Court in the perspective of the battles that still rage for ""control of our legal culture and our general culture. . ."" Proceeding from the assumption that all theories of constitutional interpretation must address, if not solve, the problem of defining the rights of majorities and minorities, Bork reaches any number of provocative conclusions. When the Supreme Court decides that it is the instrument of the general will and the keeper of the national conscience, he asserts, ""there is no law; there are only the moral imperatives and self-righteousness of the hour."" In like vein, the author argues that judges who (at the behest of a powerful subculture ""whose opinions differ markedly from those of most Americans"") exceed their authority (i.e., by not construing the Constitution according to the original understanding of its framers) do so at the risk of a separation of powers and the very liberties that the Bill of Rights grants minorities to protect them against oppression in a majority-rule system of self-government. An informed and informing case for judicial restraint, which seems sure to reopen the bitter debate over the nature of constitutional rights.

Pub Date: Nov. 13, 1989


Page Count: -

Publisher: Free Press/Macmillan

Review Posted Online: N/A

Kirkus Reviews Issue: Oct. 15, 1989