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Authors

James Boyle

Abstract

As you might guess from the title, Robert Bork's latest work, The Tempting of America, is a book about the Fall - both America's and Mr. Bork's own. It will not surprise many readers to, find that the two are linked, or that the "temptation" to which Mr. Bork refers is that of politics. In particular, he warns us of an increasing politicization of the American legal system. This politicization is caused primarily by judges who desert the original understanding of the Constitution and, under the guise of "interpretation," attempt instead to impose their own individual notions of justice on the cases before them. Mr. Bork conveys these messages in a book which is part autobiography and part legal theory, inspired by the ordeal which brought him to fame: the Senate's judicial confirmation process. In his case, of course, it was actually a process of denial. Unfortunately, so is the book.

Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other works follow a lapsarian pattern-a tale of a fall from grace, coupled with a strategy for redemption. Mr. Bork identifies a state of corruption and decay in some institution or area of law. He traces the rot to a particular departure from the proper state of affairs, a willful violation of an authoritatively decreed scheme of things. He then prescribes a method which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favor of his method, pronouncing it "inescapable" or "unavoidable." Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure, despite Mr. Bork's lengthy and thunderous denial that this is the case. Eventually, he falls silent for a while, only to emerge two or three years later with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, successively, a believer in libertarianism, process theory, judicial restraint, natural rights, neutral principles, law and economics, and two distinct forms of originalism. At the time, each of these theories was offered as the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy, while the other theories he had held, or was about to hold, were rejected out of hand.

The Tempting of America is, in one sense, the weakest and most obviously flawed of Mr. Bork's panaceas. He criticizes contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and ahistorical. Yet his prescription for cure - the philosophy of original understanding - is even more obviously flawed in these ways. Indeed, as the quotation at the beginning of this piece demonstrates, in an earlier incarnation he himself dismissed originalism as "naive." Mr. Bork's rhetoric of denial must be correspondingly stronger and more thunderous. Yet in another sense, The Tempting of America marks a departure, albeit a fragmentary and contradictory one, from the endless process of denial. It reveals a shift to a different form of conservative thought, one that could be called pre-modern, or even post-modern. For these reasons, among others, it behooves us to pay more attention to Mr. Bork's most recent argument than its surface confusion and dogma might first appear to deserve.

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