Book Review: Robert Bork, 'The Tempting of America: The Political Seduction of the Law '

I believe that Bork's book, The Tempting of America, was prophetic

Robert Bork contends that much modern legal theory wrongly  rejects an "original understanding" of the Constitution, and that this approach to the Constitution subverts our republican form of government and sets up a judicial aristocracy in its place. Although he does not specifically reference the natural law, his message will inspire people to seek the natural law as a foundation for all of their laws; and his message will also inspire people to unite against the formation of an aristocracy in our country and defeat it. 
 

P>KNOXVILLE, TN (Catholic Online) - We expect a book to provide us with meaningful and credible information. In The Tempting of America, Robert Bork exceeds this expectation--he actually educates us. He explains how liberals have manipulated the Constitution and politicized the Supreme Court, and how this has undermined our rights and our freedom. He also explains why liberals have targeted the law and the courts, and why this led to the unprecedented aggression he encountered when President Ronald Reagan nominated him to the Supreme Court in 1987.

This book is like a short course in the history of constitutional law and legal reasoning. Bork's book is destined to become a classic, and it should be a prerequisite for every citizen of voting age in our country.

In one of the most important cases in our country's history, Dred Scott v. Sanford, Bork contends that Chief Justice Taney manipulated the due process clause in the Fifth Amendment of the Constitution. "Due process" means that the substance of any law must be applied fairly. It is a legal procedure, but Chief Justice Taney used it to define the substance or meaning of the law. Bork further argues that he changed the true notion of "due process" to what became "substantive due process". Further, Bork contends that he did this because he wanted to legalize slavery and force his beliefs on the whole nation. This egregious manipulation of the law eventually led the country into civil war.

Despite its consequences, Dred Scott v. Sanford opened the door for other justices who wanted to use the Constitution to write their beliefs into law. After the Civil War, Congress added the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution in order to secure the rights of the recently freed slaves. Like the Fifth Amendment, the Fourteenth also has a due process clause; but while the Fifth Amendment was only applied to the federal government, justices applied the Fourteenth to the states.

Bork refers to this as a "silent revolution." It enabled the Supreme Court to trump the Bill of Rights, which was added to the Constitution in order to protect the states and the people from an overly powerful federal government, and turn the Bill of Rights into a hammer that could be used to control the states and the people. Thus empowered, the Court wrote many of President Franklin Roosevelt's New Deal policies into law and gave Congress immense power to regulate commerce and collect taxes. This changed our country forever.

But these changes were only the beginning. Some of our esteemed justices had acquired a taste for power. Once the equal protection clause and the idea of "fundamental rights" were added to their legal bag of tricks, justices found all sorts of new rights buried in the Constitution. This enabled the courts to unleash a barrage of social reforms on this country that liberals had long wanted but had not been able to achieve through the free exchange of ideas or the legislative process.

Bork believes that many modern legal theorists, energized by the victorious outcome of Brown v. Board of Education, set out to rewrite constitutional law in order to justify social reform and encourage justices to seek political solutions rather than legal solutions. As a consequence, much modern legal theory rejects an "original understanding" of the Constitution and relies upon justices' personal sense of "morality" to decide cases. Bork says that this approach to the Constitution subverts our republican form of government and sets up a judicial aristocracy in its place.

Bork identifies many of these theorists as anti-intellectuals, Neo-Marxists, moral relativists, and hedonists who reflect the liberal intellectual class. Bork says that modern liberals are not the same as liberals in the past. Contemporary liberals were born in the radicalism of the sixties. He calls them the "new left." They believe in an abstract, utopian world based on a radical egalitarianism that permits unfettered moral freedom for individuals; but they also believe in powerful, centralized governmental institutions that can coerce society into their so-called utopian mold.

Consequently, these liberals believe that all of our institutions must be political, and they are hostile toward anything or anyone seen as traditional. Bork reasons that this accounts for the unprecedented, successful attack against his nomination to the Supreme Court, and he believes that the nomination process will become more contentious as the new liberals succeed in politicizing the institutions of our society.

Looking back, I believe that Bork's book, The Tempting of America, was prophetic. Since his book first came out in 1991, liberals have made much progress toward their goal of transforming society through the courts. And they are positioned to make more progress in the future. We currently have a president who reflects the new-left radicalism that Bork writes about. President Obama's Supreme Court nominees, Sonia Sotomayor and Elena Kagan, like so many of his appointments to high level government positions, attest to this fact. Based on their past records, both Sotomayor and Kagan appear to be little more than politicaly motivated jurists, the kind which Judge Bork warned of in this book.  

Yet, no matter how much power the new left amasses, as long as the human spirit demands truth and freedom, Robert Bork's message will demand to be heard. Although he does not specifically reference the natural law, his message will inspire people to seek the natural law as a foundation for all of their laws; and his message will also inspire people to unite against the formation of a judicial aristocracy in our country and defeat it.  

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Michael Terheyden was born into a Catholic family, but that is not why he is a Catholic. He is a Catholic because he believes that truth is real, that it is beautiful and good, and that the fullness of truth is in the Catholic Church. However, he knows that God's grace operating throughout his life is the main reason he is a Catholic. He is greatly blessed to share his faith and his life with his beautiful wife, Dorothy. They have four grown children and three grandchildren.

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