This review serves to learn from a scholar of constitutional law, not to judge his expertise, which I cannot possibly do. Robert Bork taught constitutional law at Yale University and served as Solicitor General and Acting Attorney General of the U.S. as well as a U.S. Court of Appeals judge. He is now a Senior Fellow at the American Enterprise Institute for Public Policy Research. A readership especially interested in computing may like to know that Bork, well known as  a conservative lawyer and, in 1987, nominated by President Reagant to the U.S. Supreme Court, worked on behalf of Netscape in its antitrust case and has filed memoranda in favor of a finding against Microsoft. He is repelled by, quoting him, "the impression that conservatives hold the view that companies can do no wrong - which is as foolish as believing that individuals can do no wrong, or that government can do no wrong. There's little justification in becoming yet another political sheep in yet another political herd." [From an interview with Dennis E. Powell for Linux Planet]. 2A1

What compelled me to read Bork's book is the two quotations that introduce it. One is from the fourth president of the U.S., James Madison, which goes, "I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violence and sudden usurpation. The other is from a legal scholar, Robert Maynard Hutchins, who opined, "The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment." Our sentiments exactly. 2A2

The spread of democracy around the globe, is accompanied by deterioration from within. Bork identifies as the causes for this decay the rise of relatively unaccountable and powerful bureaucracies, the decline in belief in authoritative religions, the acceptance of an ethos of extreme individual autonomy, the influence of the mass media, the explosion in size of the academic intellectual class, and, most of all, the ascendancy of activist, ambitious, imperialistic judiciaries. He singles out "activist judges" as the principal culprits for it is they who aid and abet the other forces by enacting an agenda of the "cultural left." Bork supports this last assertion by an exhibit of legal developments in the United States as well as in Canada and in Israel, and on the international scene. 2A3

In Israel, especially, non-elected judges exert excessive power. "The Israeli Supreme Court is making itself the dominant institution in the nation, an authority no other court in the world has achieved." Whereas the nation started out as highly politicized, the Court gradually began to interpret statutes in terms of natural justice, "an amorphous concept designed to cut the Court loose from the restraints of positive law.... Even an activity of the greatest political character, such as the making of war or peace,  is examinable by judicial criteria." The Court's omnipotence puts Israel's status as a democratic nation in question. 2A4

It is such amorphous concepts as that of natural justice that taint activist judges in the United States. Viewing the legal landscape internationally, he warns that the global influence of the United States causes the shortcomings of its legal practices to spill out around the world. 2A5

Different people have different notions of democracy. For Bork the touchstone for a people's democratic conduct is their nation's constitution and the amendments made since its signing. His quarrel with an activist agenda is that sentiment is submerging the discipline of reason. That sentiment is welling up from what Bork refers to as the "New Class," intellectuals with liberal views; and he has some harsh words to say about these people and how their conduct is altering judgments of the courts. 2A6

Sensing myself to be of the liberal ilk, the book made for me some irritating reading in spots. The author's choice of words and mode of expression at first colored the book as a rant; they engendered a compulsion to return it to the library shelf whence it came. But at the same time, there was an important message coming through, one that can't be ignored. Hence, I feel it is a book that calls for careful reading and thoughtful evaluation. My feelings about it may still change, but at this moment of writing, I sense that we have here a sound structure created by legal expertise and a lifetime of practice at disciplined reasoning, yet a structure that rests on a moral foundation too axiomatic for simple acceptance. I also sense, rightly or wrongly, that the author has failed to take into sufficiently thoughtful account the impact of scientific discoveries and working hypotheses - and how these impact those on and near the scientific frontiers and then gradually spread throughout a population at large. The ballot box recognizes expressed opinion, not informed opinion. 2A7

Here is a passage, beginning on page 3, that describes the impetus toward activism. 2A8

"Judicial activism results from the enlistment of judges on one side of the cultural war in every Western nation. Despite denials by some that any such conflict exists, the culture war is an obtrusive fact. It is a struggle between the cultural or liberal left and the great mass of the citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left. There is a certain embarrassment in choosing a name for this group. We often call its members the 'intellectual class,' the 'intelligentsia,' the 'elite,' the knowledge class, or, dismissively, the 'chattering class.' Most of these names have the unfortunate connotation of superiority to the general public. That implication is not justified and certainly not intended here. Individual members of the intellectual class are not necessarily, or even commonly, adept at intellectual work. Rather, their defining characteristic is that they traffic, at wholesale or retail, in ideas, words, or images and have meager or no practical experience of the subjects on which they expound. Intellectuals are, as Frederick Hayek put it, 'secondhand dealers in ideas.' Their function is neither that of the original thinker nor that of the scholar or expert in a particular field of thought. The typical intellectual need be neither: he need not posses special knowledge of anything in particular, nor need he even be particular intelligent, to perform his role as intermediary in the spreading of ideas.' I will sometimes refer to these faux intellectuals as the 'New Class,' a term that suggests a common class outlook and indicates the group's relatively recent rise to power and influence." 2A9

Who make up this New Class? "Print and electronic journalists; academics at all levels; denizens of Hollywood; mainline clergy and church bureaucracies; personnel of museums, galleries, and philanthropic foundations; radical environmentalists; and activist groups for a multiplicity of single causes. These are clusters of like-minded folk and they have little knowledge or appreciation of people not like themselves." 2A10

The tone of these paragraphs may well strike the reader as haughtily abusive, a trademark of the conservative elite, as does a quotation from G.K. Chesterton that follows: "In all extensive and highly civilized societies groups come into existence founded upon what is called sympathy, and shut out the real world more sharply than the gates of a monastery.... [T]he men of a clique live together because they have the same kind of soul, and their narrowness is a narrowness of spiritual coherence and contentment." It is a tone that paints the right right without call on self-examination, which makes it irritating. And yet, given the author's role in life, one ought to respect his experience with views and motivations that do not stand up to scrutiny. But, then again, members of the New Class are known to question the thinking of fellow members as well as their own. 2A11

Bork sympathizes with the view, expressed by Max Weber, that members of the New Class characteristically desire meaning in life, which calls for transcendent principles and universal ideals previously conferred by religions no longer adhered to. In contrast, "conservatist pragmatism, especially its concern with particularity - respect for difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societies - does not qualify as a universal principle, but competes with and holds absurd the idea of utopia in this world." Conservatives feel that achievements and traditions of the past ought make up the foundation of communal life and guide our conduct in a continually reinvigorating process. 2A12

The struggle between the New Class and the conservatives is both cultural and a tiff between classes. The New Class is upper-middle class with higher education. "Initiated by upper-middle-class students, the turmoil of the 1960s centered in the most prestigious universities, where the allegedly rigid and oppressive Establishment, having the same social characteristics and, in diluted form, many of the same values as the rioting students, immediately went limp. On graduation, the radical students went where they could best influence ideas and undercut traditional values. Thirty years on, they control the left wing of American politics and almost all the nation's cultural institutions.... Other Western nations travelled much the same route." Bork quotes James Davison Hunter perception of a polarity between a highly secularized cultural elite - New Class - and a general population that continuous to be deeply religious. "Just how genuinely religious ... may be debatable, but it is true that, almost everywhere, the public views religion very favorably, even when regarding it as a form of therapy and being selective in its obedience to doctrine and obligations." 2A13

It is not only an attitude toward religion that distinguishes the  New-Class minority from the majority. Other differences listed are found in views on abortion, family, the teaching of values in public schools, state monopoly of primary and secondary education, the relevance of European heritage in increasingly multicultural societies, funding for the arts and the purpose of art itself, homosexual rights, patriotism, "social justice," welfare, gender, race and ethnicity - a list of issues in which a political minority, the New Class, can't get its way through the ballot box. It is at this point that Bork's book brings up its principal theme: "Constitutional courts provide the necessary means to outflank majorities and nullify their votes. The judiciary is the liberals' weapon of choice. Democracy and the rule of law are undermined while the culture is altered in ways the electorate would never choose." 2A14

Along with this cultural legerdemain comes the already mentioned social one: "It may be useful to view the culture war from an additional perspective. It is, at bottom, a question of allegiance to or rejection of the socialist ideal. Kenneth Minogue wrote that 'even socialists [have been convinced] - for the moment - that the economy must be left alone. What has not changed is the deep passion of reformers and idealists in our civilization to take over governments and use their authority to enforce a single right way of life. This impulse now focuses on social issues, like sex, drugs, education, culture and other areas where a beneficent government aims to help what they patronizingly call 'ordinary people'." 2A15

"These social or cultural issues are the area where constitutional courts regularly attack the institutions and laws of 'ordinary people'." 2A16

Most of the above quotations come from the book's introduction. The tone very gradually changes, from subjective to objective, once we have entered the book's chapters proper where cases feed the roots of generalization. Still, Bork's own experience of being nominated, but not appointed to the U.S. Supreme Court breaks to the surface: "... the Court's work is judged politically, and the filling of vacancies on the retirement or death of Justices can set off major political battles." 2A17

Bork describes four possible remedies for judicial activism, but none of them "encouraging at present." Two of these involve an overruling of judicial decisions by Congress. A third remedy is to appoint judges who will apply the Constitution according to an original understanding of its principles. Fourth is persuading the Court itself to mend its ways. What renders these last two remedies useless is the influence of media and academics on the Judges reputations. 2A18

In the concluding chapter, Bork reminds us that "Rule by the people, which all Western democracies proclaim, means that voters choose legislators and executives according to the policies the candidates offer, that those elected will enact rules, and that judges and juries will apply those rules impartially and as intended. Unless that pattern is at least roughly followed, public debate, elections, and legislative deliberations have little significance."  Then comes the clincher - an apparent reversal of a time honored principle that form follows function: "Process comes first, substance follows." 2A19

Slow process, rapidly changing substance! At any rate, a sticking to the principles Bork expounds and doing so in a world ever more complex and moving at an extraordinarily accelerating pace obviously calls for work to be done on that very fulcrum of the democracit process: elections - the elections of competent, responsible persons by a competent, responsible electorate; a well informed electorate. It is here where educators and the media must improve their roles in society and it is for this process where scientists and technicians must develop appropriate tools. And it is in this vein that Fleabyte seeks to promote public computency as something "needed for the proper functioning of an environmentally healthy, prosperous, democratic society." 2A20
 

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