The New Right Against the Old Rights : THE TEMPTING OF AMERICA: The Political Seduction of the Law <i> by Robert H. Bork (The Free Press: $22.95; 388 pp.)</i>

In 1987, the Senate rejected the nomination of Robert Bork by the largest vote in history against a nominee for the Supreme Court, although he was preeminently qualified. His constitutional opinions, which accounted for the nomination, brought his defeat. Bork provoked intense opposition because he was perceived as a conservative judicial activist who had made himself a symbol of opposition to liberal activism. He remains the nation’s foremost theoretician of a constitutional jurisprudence of originalism, or original meaning: “All that counts is how the words used in the Constitution would have been understood at the time the Constitution was ratified.”

This book solidifies Bork’s position as an intellectual role model for scores of federal judges appointed by President Reagan. The book also elaborately defends Bork’s views and explains his defeat by “left-liberal” pressure groups that, he alleges, politicized the judicial process. The title of the book refers to “the temptation of results without regard to democratic legitimacy.”

In his first section, Bork surveys the history of judicial activism. He depicts an increasing politicization and leftward movement of the Court from liberty-oriented doctrines to equality-oriented ones. Judicial activism began with the first decision on constitutional law. It reached an ugly climax in the years following the Civil War, when the Court savaged congressional civil-rights laws and betrayed the 14th Amendment’s promise of equal citizenship. Bork omits this bleak chapter of our judicial history, conserving his space to lambaste the Warren Court for its activism in the cause of equality.

In the middle part of the book, Bork criticizes theorists, left and right, who support judicial activism--that is, deciding on a basis other than Bork’s concept of original understanding or intent. Finally, he narrates the story of his own confirmation ordeal. He places the rejection of his nomination in the context of a “war” for control of the legal culture and even for America’s soul. The book will confirm the beliefs both of Bork’s liberal opponents and conservative supporters. Unfortunately, Bork, who inhabits a Manichaean universe, does not address himself to moderates who endorse judicial restraint without embracing his brand of originalism.

Bork claims that “liberal elites” seek to destroy the idea of the rule of law and make the philosophy of originalism a disqualification for judicial office. That claim conflicts with the confirmation of William Rehnquist as chief justice and the unanimous confirmations of Antonin Scalia and Anthony Kennedy, who share many of Bork’s views. Moreover, Bork initially had the support of moderates and some liberals. When Sen. Edward Kennedy demagogically distorted Bork’s record to inspire a fear of him, I wrote to congratulate Bork on his nomination and to wish him well. I thought he should be judged on the basis of his judicial record and believed that his opinions would not be predictable.

Before the final vote on Bork’s nomination, however, several studies of his opinions strongly indicated a systematic hostility to feminists, blacks, gays and labor. Bork angrily disputes these accusations. He takes none of the blame for his defeat, alleging that the hearings, including his five days of testimony, changed “no one’s mind.” In fact, he lost several initially indecisive senators including Southern Democrats and members of his own party. He waffled on numerous issues, causing some to declare that they did not understand him and others to speak of his “confirmation conversion.”

This distempered book fails as a defense of originalist jurisprudence because originalism rests on the views of the founders, and Bork, as a historian, is ignorant. Moreover, the historical sources are simply inadequate to provide a viable constitutional jurisprudence that will decide actual cases. Bork emphasizes ratifier intent, but we don’t even have the records of the proceedings of most state-ratifying conventions, and those that we do have are often unreliable. What Bork wants from history is a premise or principle to apply to constitutional issues, but he acknowledges that history yields various and conflicting premises and that able and sincere originalist judges who apply the same premises can reach differing results.

Bork himself has employed discrepant premises and reached discrepant results at various times. In a 1968 Fortune article, for example, he favored “legitimate activism” and found a warrant for it in the 9th Amendment, which says that the enumeration of rights should not be construed to deny or disparage other rights. To Bork, that meant that the Bill of Rights “is an incomplete, open-ended document, and that the work of completion is, at least in major part, a task for the Supreme Court.” The amendment extended the range of individual freedoms “far beyond the text of the Constitution.” From that amendment and enumerated rights, judges should properly draw “new natural rights.”

Today that is all anathema to Bork. When the grand theorist of originalism changes his mind, the theory--which is supposed to yield impersonal results free from judicial subjectivity--loses credibility. What originalists attribute to the wisdom of the founders turns out to be their own wisdom dressed in 18th-Century ruffles.

Bork’s 1989 wisdom shrivels most old rights and regards new ones as “preposterous.” He equates federalism and states rights, arguing that if a state discriminates on grounds of race or religion, the injured parties are free to emigrate. “In this sense, federalism is the constitutional guarantee most protective of the individual’s freedom to make his own choices.” Similarly, Bork in 1963 believed that an act of Congress outlawing racial discrimination in hotels and theaters and restaurants would infringe on the rights of white-supremacist business owners. Today he repudiates that position, but I doubt that he would have voted to sustain the constitutional authority of Congress to enact the statute.

Any right not mentioned in the Constitution doesn’t have constitutional existence, according to Bork--not a right to privacy, to have an abortion, to practice contraception, or any right that is not enumerated. (“Liberty,” it seems, is not an enumeration.) Yet Bork is wonderfully inconsistent. Although the 4th Amendment protects “papers” and not “words” against unreasonable searches, and although the founders knew about eavesdropping and did not protect against it, Bork derives a right against electronic eavesdropping. Here, he says, judges must understand rights in the context of changing circumstances, rather than allow them to become meaningless. He refuses, however, to acknowledge that the equal-protection clause has a similar capacity for adaptation to a changed world--or even that it means what it says. “The equal protection of the laws” contains no limitation to any particular group of beneficiaries, and the clause immediately follows the 14th Amendment’s general declaration of citizenship. Yet Bork now regards the guarantee of equal protection as restricted to a historical intent to forbid racial discrimination. On this view, equal protection offers nothing to women, aliens, homosexuals or the aged.

So, Bork argues, the Constitution means what it says when it says what he means. Sometimes the literal words should govern; sometimes the words should be taken to embody a larger general principle; sometimes original purpose should triumph over the words. As Bork says, an honest judge “knows that he often intuits a conclusion” and then finds supporting reasons. That proposition is undeniable, and this book is Exhibit A.