Judicial activism has no more ferocious a critic than Robert Bork. As a federal judge, a professor at Yale Law School, and a famously mau-maued Supreme Court nominee, he has tirelessly exhorted courts to stay true to the original meaning of the U.S. Constitution, and to leave policy-making to legislators. In Coercing Virtue: The Worldwide Rule of Judges, Bork returns to his favorite topic, tracing the continued rise of judicial activism in the United States and describing its contagion internationally.

In Bork's telling, the roots of judicial activism in America were put down in Dred Scott v. Sandford (1857). In that notorious case, the Supreme Court forbade Congress from outlawing slavery in the federal territories because such a prohibition would deprive slaveholders of property without "due process of law." The decision not only furthered the evil of human bondage, it also set the doctrinal table for generations of future judges by converting the Fifth Amendment's due-process clause "from a guarantee of a proper process in the application of law to a guarantee of a proper substance."

Early in the 20th century, conservative justices seized on this notion to declare a constitutionally enshrined "liberty of contract" as they struck down labor laws and elements of the New Deal. Decades later, the Court would invoke "due process" to bolster the Left in the culture wars, creating a "right of privacy" that protected, among other things, access to contraceptives and abortion. More recently, in cases on nude dancing, homosexual rights, and the admissions policies of all-male military colleges, the Court has fallen under the sway of "New Class" elites, composed, in Bork's description, of journalists, academics, denizens of Hollywood, and various activist groups.

But the extension of law and judicial authority beyond their proper sphere has not been a uniquely American phenomenon. As Bork points out, international law has fallen prey to similar problems, particularly when it comes to questions of war. The Nuremberg trials after World War II, he believes, were a mistake, at least insofar as they "were presented as the proceedings of courts of law." Though the prosecution of Nazi leaders was eminently justifiable from a moral perspective, the trials set in motion the futile and dangerous idea "that law can control the use of force and atrocities inflicted upon individuals or groups."

When questions of war are turned into questions of law, Bork argues, their moral component often gives way to matters of form and procedure. This does not bother the Left-leaning lawyers and activists who dominate the international bar. It leaves them free to ignore Communist gulags and terrorist training camps while they "knit the ill-defined and infinitely malleable strands of international "customary" law into indictments of the United States, Israel, and other hated Western powers. At the same time, Bork observes, defenders of those same countries' interventions, appealing to international rules that "must not express a preference for freedom over tyranny," are placed at a permanent disadvantage. As he summarizes the perversity of the situation:

I once listened to a professor of international law defend the United States' actions in Grenada. The argument seemed tortured and artificial. . . . When he was done, I asked whether three factors that most Americans deemed relevant to the matter counted in international law. First, the Grenadan government consisted of a minority that had seized control by violence and maintained it by terror. Second, it was a Marxist-Leninist regime and represented a further advance in the hemisphere of a power that threatened freedom and democracy. . . .  Third, the people of Grenada were ecstatic at being relieved of tyranny. . . . The expert replied, somewhat sadly, that these considerations had no weight in international law.

Coercing Virtue concludes with two case studies that demonstrate how the tendencies of the U.S. system have been exported to other national courts, with predictable results. Bork's first example is Canada, whose Charter of Rights and Freedom, created in 1982, has from the outset been a favorite vehicle for social engineers of the Left. Even though the Canadian Parliament explicitly chose not to include sexual orientation in the charter's anti-discrimination provisions, the country's high court has invoked the charter to protect the rights of homosexuals. It has likewise struck down limits on abortion, rewritten ancient Indian treaties, and effectively outlawed capital punishment.

But the prize for judicial activism goes, in Bork's view, to the supreme court of Israel. Though the Jewish state has no formal constitution, Aharon Barak, the long-serving chief justice, has set out to subordinate every facet of Israeli government--every law, every executive decision, every political appointment--to his court's judgment. And, in large measure, he has succeeded, even in vital matters of defense and national security. Worse, the Israeli high court operates virtually without check, since the committee that picks new judges is itself dominated by sitting judges.

Bork's treatment of judicial activism in the U.S. will have a familiar ring to readers of his previous works. With the addition of withering commentary on the most controversial cases of the 1990's, Coercing Virtue essentially updates his 1989 classic, The Tempting of America.

If there is a shortcoming in this part of the book, it is Bork's failure to engage the critics of his own jurisprudence of "original understanding." Attractive though it undoubtedly sounds to apply the Constitution according to the principles of the generation that established it, it is not always so easy to divine the intent of the framers and ratifiers, especially when one is dealing with complex modern disputes. We may know with some certainty what the founders thought of capital punishment, but it is far less clear what they would make of, say, warrantless police searches using air-borne infrared imaging, a controversial technique used for detecting hydroponic drug-growing operations. One misses, too, any discussion by Bork of conservative activism on the bench, not just in Bush v. Gore but in a series of federalism cases as well.

What is new and valuable in Coercing Virtue is Bork's discussion of judicial overreaching abroad. Though the book was written before the Iraq war, it is a penetrating and timely contribution to the ongoing debate about its legality. Indeed, there could be no better illustration of Bork's thesis about the failings of international law than the insistence of Jacques Chirac and Kofi Annan that the U.S. lacked authority to depose a genocidal dictator because Angola, Cameroon, Syria, and the other members of the UN Security Council refused to grant their imprimatur.

Bork is plainly distressed by the continuing influence of such arguments, as he is by the seemingly unshakable grip of activist judges in the U.S. and other Western democracies. One detects in Coercing Virtue, however, not so much anger as resignation. As Bork concedes, Western populations have been largely quiescent in the face of their judges' imperial ambitions. Even legislatures, which have the most to lose from the encroachment of courts on policy-making, protest only feebly and irregularly. Elected representatives often express relief, privately, that judges have taken divisive issues like abortion and gay rights out of their hands.

Though he is loath to say so directly, this great critic of judicial activism may feel that his battle has been lost. For the sake of our democratic health, not just in the U.S. but in the West as a whole, one hopes he is wrong.

Jonathan Kay is the editorials editor of the National Post in Toronto.