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“The first subject Bork discusses is the concept of judicial review,
as established by the landmark court case, Marbury v. Madison.”
“’...the centrifugal forces in the new nation were so great that at
times Marshall and others despaired of the Union's survival. Congress
often behaved more like a bevy of ambassadors from separate nations
than a national assembly. The Federalist judiciary was the one strong,
centralizing branch of government. Marshall knew that and used his
powers accordingly. Jefferson knew it too, and was determined to
destroy the courts' independence. It is against this backdrop that one
must evaluate Marshall's performance.’”
“Bork then goes on to discuss the classifications of statues and the
necessity of making distinctions, when the law is concerned. ‘The
classifications...reflect compromises between legislators or
constituencies with different views concerning matters. For these
reasons different states have different laws...if there had to be
objective proof of...differences between the classifications of the
law, legislatures could not legislate (65).’”
“The concept of original understanding is certainly not propagated by
many legal professionals in our current era. ...the philosophy is
usually viewed as thoroughly passe, probably reactionary, and
certainly--'outside the mainstream'"(143). On the contrary, Bork
states "...only the approach of original understanding meets the
criteria that any theory of constitutional adjudication must meet in
order to possess democratic legitimacy. Only [original understanding]
is consonant with the design of the American Republic’(143).”
“The Tempting of America by Robert Bork”
Review by: Maureen Lorincz
http://web.syr.edu/~mrlorinc/psc129review1.html
“’In law, the moment of temptation is the moment of choice, when a
judge realizes that in the case before him his strongly held view of
justice, his political and moral imperative, is not embodied in a
statute or in any provision of the Constitution. He must then choose
between his version of justice and abiding by the American form of
government. Yet the desire to do justice, whose nature seems to him
obvious, is compelling, while the concept of constitutional process is
abstract, rather arid, and the abstinence it counsels unsatisfying. To
give in to temptation, this one time, solves an urgent human problem,
and a faint crack appears in the American foundation. A judge has
begun to rule where a legislator should.’"
Commentary by reviewer:
“As Robert Bork explains in this book, there are key differences
between legislators and judges which make it vital that judges do not
usurp legislative authority. When the judiciary creates the law
instead of merely applying it, democratic representative government is
replaced by judicial oligarchy. Because Supreme Court judges are
unelected, appointed for life, and exercise a governmental power which
is virtually unchecked, their decisions can threaten the rule of law
when the justices choose to depart from the law in favor of their own
moral philosophies.”
“HallAudiobooks.com :: The Tempting of America”
http://hallaudiobooks.com/index.php/Mode/product/AsinSearch/0684843374/name/The%2520Tempting%2520of%2520America/browse/1038338/page/2
“'. . Legal reasoning, which is rooted in a concern for legitimate
process rather than preferred results, is an instrument designed to
restrict judges to their proper role in a constitutional democracy.
That style of analysis marks off the line between judicial power and
legislative power, which is to say that it preserves the
constitutional separation of powers, which is to say that it preserves
both democratic freedom and individual freedom. Yet legal reasoning
must begin with a body of rules or principles or major premises that
are independent of the judge's preferences. That, as we have seen, is
impossible under any philosophy of judging other than the view that
the original understanding of the Constitution is the exclusive source
for these exterior principles.’”
“Bork on the True Foundation of Judicial Decisions”
http://members.aol.com/basfawlty/bork.htm
“’The abandonment of original understanding in modern times means the
transportation into the Constitution of the principles of a liberal
culture that cannot achieve those results democratically.’"
“’Either the Constitution and statutes are law, which means that their
principles are known and control judges, or they are malleable texts
that judges may rewrite to see that particular groups or political
causes win.’"
“’When we speak of 'law,' we ordinarily refer to a rule that we have
no right to change except through prescribed procedures. That
statement assumes that the rule has a meaning independent of our own
desires.’”
“Living Constitution Makes Judges Kings”
http://www.dadi.org/ct_kings.htm
“’Those who made and endorsed our Constitution knew man's nature, and
it is to their ideas, rather than to the temptations of utopia, that
we must ask that our judges adhere.’
—Robert Bork, The Tempting of America”
“Judges Quotes”
http://www.policyofliberty.net/quotes4.php
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Judge Bork "The Tempting of America"
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Easterangel-ga
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