The Tempting of America

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.

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

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

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The Tempting of America

Summary

Author Biography

Table of Contents

Supplemental Materials