The Tempting of America by Robert H. Bork
“In the past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, to capture and use it for politics’ own purposes, which the second subject, – law, religion, literature, economics, science, journalism, or whatever – struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult sas more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, become politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the “correct” political outcome… (gp: politics = private interests)
“What does it mean to say that a judge is bound by law? It means that he is bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment. “
GP: Robert Bork is probably one the most eloquent defenders of the Strict Constructionists – or Original Intent camp of Constitutional interpreters. The above quote comes from his Introduction to The Tempting of America, which he wrote after he was rejected by Senate in the confirmation hearings for a Chief Justice.
The attempt to distinguish the Rule of Law from the Rule of Man is outlined in the following Wikipedia Articles. The Torah solution, of course, is that the this distinction cannot be made –
GP: Despite Robert Bork’s sharp attack on The Supreme Court and its decisions, there is a moral sense that weaves its way, most often, via dissenting opinions, in the conclusions of Supreme Court Decisions. Here is an eloquent statement on the nature of Law and Judicial Decisions, by one of the all-time greats in Supreme Court history
Associate Chief Justice Oliver Wendell Holmes, Jr. :
The following was written 109 years before Justice Robert Bork wrote The Tempting of America:
“The object of this book is to present a general view of the common law. To accomplish this task, other tools are needed beside logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intentions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men shall be governed. The law embodies gthe story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has bveen and what it tends to become.
…in substance the growth of the law is legislative…in its grounds. The very considerations which judges most rearely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient fo the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy…But hitherto this process has been largely unconscious. It is important, on that account, to bring to mind what the actual course of events has been. If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful.
…judges as well as others…openly discuss the legislative principles upon which their decisions must rest in the end, and base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated interference fifty years ago.” (Oliver Wendell Holmes Jr., The Common Law, 1881).
“When we are dealing with words that also are a constituent act, like the Constitution of the U.S., we must realize that they have called into life a being the development of which could lnot have been foreseen completely by the most givted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.” (252 U.S. 416, 433).
“…the case before us must be considered in the light of our who national experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what the Amendment has reserved.” (252 U.S. 433, 434.)