The Tempting Of AmericaEdit
The Tempting of America: The Political Seduction of the Law, published in 1990 by Robert Bork, stands as a pointed critique of how large swaths of modern constitutional jurisprudence had drifted away from the text and historical understanding of the American charter. Bork argues that judges, lawyers, and intellectuals had allowed the Constitution to be recast as a vehicle for social policy rather than a framework of limited government, creating a judiciary that legislates from the bench rather than adjudicates. The book is both a defense of disciplined constitutional interpretation and a warning that without restraint, law risks becoming the instrument of fashionable moral projects rather than a durable set of rules for all citizens.
From Bork’s vantage, the temptation is to replace the Constitution’s original meaning with a living, morally progressive reading that aligns with contemporary consensus. He contends that this approach invites judges to tax the democratic process, since many questions of public policy are, in practice, decided not by legislatures but by courts. The Tempting of America lays out a program for restoration: emphasize textualism and originalism, reaffirm the separation of powers, and insist that the judiciary hew to the Constitution’s words and the framers’ intent rather than the judges’ own views on social reform. For readers curious about the broader debate over constitutional method, the book engages directly with the contrasts between Originalism and Living Constitution approaches to interpretation and the consequences of each for politics and liberty.
Background and Context
In the decades leading up to the book, many courts, scholars, and policymakers expanded the reach of constitutional rights far beyond the text’s enumerated guarantees. The Warren era and the early liberal Court eras produced decisions that, in Bork’s telling, treated the Constitution as a dynamic document whose meaning could be reinterpreted to reflect evolving social norms. Critics of this approach argue that it grants judges a quasi-legislative authority that circumvents elected representatives. Supporters of the traditional reading, by contrast, insist that the Constitution’s authority rests on its text, historical development, and tight constitutional limits.
Key terms in the debate include Textualism and Originalism—methods Bork champions. He contrasts them with the so-called Living Constitution, which emphasizes the adaptability of rights and principles to changing times. The book also discusses the idea of the “due process revolution,” which, in Bork’s view, extended constitutional protection in ways that strained the text’s boundaries. Contextual cases, such as Roe v. Wade and related disputes about privacy and substantive due process, are examined as flashpoints where method and outcome intersect in a politically charged atmosphere. The period’s debates also intersected with the political process surrounding Supreme Court nomination—notably the bitter fight over Robert Bork’s own nomination in 1987, which became a focal point for the clash between constitutional method and political strategy.
Core Arguments and Method
Text, History, and Government Power
At the core, The Tempting of America argues for a disciplined judicial method anchored in the Constitution’s text and the historical understanding of its provisions. Bork emphasizes that judges should interpret the law using the words and the framers’ intent, with attention to the institutional structure the Constitution creates: limited federal power, defined legislative processes, and distinct roles for the judiciary, the legislature, and the executive. This stance is intended to prevent policy choices from being outsourced to unelected judges. In this framework, rights are not conjured to match shifting moods but are grounded in the actual constitutional text and the historical practice surrounding it.
The Judiciary’s Legitimacy and Democratic legitimacy
A recurring theme is the idea that judicial legitimacy rests on restraint and fidelity to law, not on the ability to mold policy to the judges’ preferred vision of society. Bork argues that when the courts presume policy-making power, they undermine the democratic process and invite constitutional crisis when elected bodies differ from judicial conclusions. The Tempting of America therefore advances a view of the judiciary as an essential, but limited, guardian of constitutional order.
Rights, Privacy, and Counterclaims
Bork is skeptical of expansive, non-enumerated rights that arise from broad readings of the due process clause or privacy doctrine. He disputes the notion that rights not explicitly stated in the text can be invoked to reach sweeping social reforms. Critics of this stance say it can hamper protections for vulnerable groups; supporters of Bork’s approach contend that lasting protection comes from a stable constitutional framework and a judiciary that respects its proper jurisdiction.
Practical Consequences
The book also surveys consequences for legal education, legal practice, and public policy. If the interpretation of the Constitution becomes unstable, or if the courts frequently overturn settled expectations, confidence in the rule of law may wane. Proponents of Bork’s approach argue that a disciplined method yields more predictable results, preserves the integrity of the political process, and reduces the risk of judicial overreach.
Reception and Debates
Support and Critique from the Right
The Tempting of America resonated with readers seeking a reassertion of judicial restraint and a return to constitutional text as the guide for adjudication. It helped crystallize a movement around originalist jurisprudence that would later be associated with figures such as Antonin Scalia and Jeffrey Rosen—though Rosen would later stress a more nuanced interpretation of precedent in some cases. The book also shaped academic and political discussions about how to reconcile civil rights progress with constitutional limits and how to judge the legitimacy of court decisions when they clash with popular will.
Liberal and Scholarly Rebuttals
Critics from the other side of the spectrum argued that Bork’s framework could threaten protections for marginalized groups and deprive the law of tools to address changing social realities. They suggested that a strict return to original meanings might neglect living conditions and evolving understandings of equality. Supporters of the living approach counter that constitutional interpretation must be responsive to real-world conditions and injustices that a strict text-centric view might overlook. Some critics portrayed Bork’s program as insufficiently attentive to the historical injustions that required legal remedies beyond the letter of the text; others argued that his account underestimates the Constitution’s capabilities to adapt through legitimate constitutional change and democratic processes.
The Nomination Context
The book’s ideas gained heightened visibility in the political arena around Supreme Court nominations. The unsuccessful confirmation of Robert Bork in 1987 underscored the high-stakes tension between originalist jurisprudence and political strategy, illustrating how constitutional method can become a focal point in national political battles. The contemporary conversation around judicial philosophy often references The Tempting of America as a touchstone for debates about how a court should interpret the Constitution and what legitimacy comes from respecting the text versus responding to evolving social norms.
Legacy and Influence
The Tempting of America helped anchor a broader movement toward legal realism that prizes the Constitution’s text, structure, and historical understanding as the guide for judicial interpretation. It played a significant role in shaping discussions about the proper boundaries between the branches of government and the proper role of the courts in shaping social policy. The book’s emphasis on constraints and formalism influenced later critiques of perceived judicial overreach and contributed to the emergence of a school of thought centered on Textualism and Originalism methods in constitutional interpretation. It remains a reference point in debates over how to balance social progress with constitutional limits, and it is frequently cited in discussions about the legitimacy and function of the judiciary in a constitutional republic.