The Tempting of America

by Bork, Robert H.

• ISBN13: 9780684843377
• ISBN10: 0684843374
• Format: Paperback
• Copyright: 1997-01-01
• Publisher: Free Press

Summary

Judge Bork shares a personal account of the Senate Judiciary Committee's hearing on his nomination as well as his view on politics versus the law.

Author Biography

Robert Heron Bork was a judge, government official, and legal scholar who served as the Solicitor General of the United States.

Table of Contents

Acknowledgments	xvii
Introduction	1	(14)
I The Supreme Court and the Temptations of Politics	15	(118)
Creation and Fall	19	(32)
The First Principles of the Social Compact	19	(1)
The Divided John Marshall	20	(8)
Chief Justice Taney and Dred Scott: The Court Invites a Civil War	28	(6)
The Spirit of the Constitution and the Establishment of Justice	34	(2)
Judicial Activism in the Service of Property and Free Enterprise	36	(15)
The New Deal Court and the Constitutional Revolution	51	(18)
Federalism and Sick Chickens	51	(3)
Roosevelt Fails, Then Succeeds, in Remaking the Court	54	(2)
The Court Stops Protecting Federalism	56	(1)
Economic Due Process Abandoned	57	(1)
The discovery of ``Discrete and Insular Minorities''	58	(3)
Laying the Foundation for Substantive Equal Protection	61	(8)
The Warren Court: The Political Role Embraced	69	(32)
Arrested Legal Realism	69	(5)
Brown v. Board of Education: Equality, Segregation, and the Original Understanding	74	(10)
One Person, One Vote: The Restructuring of State Governments	84	(6)
Poll Taxes and the New Equal Protection	90	(1)
Congress's Power to Change the Constitution by Statute	91	(2)
Applying the Bill of Rights to the States	93	(2)
The Right of Privacy: The Construction of a Constitutional Time Bomb	95	(6)
After Warren: The Burger and Rehnquist Courts	101	(28)
The Transformation of Civil Rights Law	101	(9)
Judicial Moral Philosophy and the Right of Privacy	110	(16)
The First Amendment and the Rehnquist Court	126	(3)
The Supreme Court's Trajectory	129	(4)
II The Theorists	133	(134)
The Madisonian Dilemma and the Need for Constitutional Theory	139	(4)
The Original Understanding	143	(18)
The Constitution as Law: Neutral Principles	143	(3)
Neutrality in the Derivation of Principle	146	(1)
Neutrality in the Definition of Principle	147	(4)
Neutrality in the Application of Principle	151	(2)
The Original Understanding of Original Understanding	153	(2)
The Claims of Precedent and the Original Understanding	155	(6)
Objections to Original Understanding	161	(26)
The Claim that Original Understanding Is Unknowable	161	(6)
The Claim that the Constitution Must Change as Society Changes	167	(3)
The Claim that There Is No Real Reason the Living Should Be Governed by the Dead	170	(1)
The Claim that the Constitution Is Not Law	171	(5)
The Claim that the Constitution Is What the Judges Say It Is	176	(1)
The Claim that the Philosophy of Original Understanding Involves Judges in Political Choices	176	(2)
``The Impossibility of a Clause-Bound Interpretivism''	178	(9)
The Theorists of Liberal Constitutional Revisionism	187	(36)
Alexander M. Bickel	187	(7)
John Hart Ely	194	(5)
Laurence Tribe	199	(7)
More Liberal Revisionists of the Constitution	206	(13)
Justice William J. Brennan, Jr.	219	(4)
The Theorists of Conservative Constitutional Revisionism	223	(18)
Bernard Siegan	224	(5)
Richard A. Epstein	229	(2)
Justice John Marshall Harlan	231	(4)
A Judicial Philosophical Free-for-All	235	(6)
Of Moralism, Moral Relativism, and the Constitution	241	(10)
The Impossibility of All Theories that Depart from Original Understanding	251	(10)
In Defense of Legal Reasoning: ``Good Results'' vs. Legitimate Process	261	(6)
III The Bloody Crossroads	267	(84)
The Nomination and the Campaign	271	(24)
The Hearings and After	295	(28)
The Charges and the Record: A Study in Contrasts	323	(14)
The Civil Rights of Racial Minorities	324	(2)
The Civil Rights of Women	326	(5)
Big Business, Government, and Labor	331	(2)
Freedom of Speech Under the First Amendment	333	(4)
Why the Campaign Was Mounted	337	(8)
Effects for the Future	345	(6)
Conclusion	351	(6)
Appendix: The Constitution of the United States of America	357	(21)
Notes	378	(29)
Table of Works Cited	407	(8)
Table of Cases	415	(4)
Index	419