Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights) [Hardcover]

J. Harvie Wilkinson (Author)

Book Description

Publication Date: March 12, 2012 | Series: Inalienable Rights

American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms regulations, health care reform and counterterrorism efforts, not to mention a millennial presidential election, are more and more the domain of judges.

What sparked this development? In this engaging volume, Judge J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. Thinkers as diverse as Justices William Brennan and Antonin Scalia, Professor John Hart Ely, Judges Robert Bork and Richard Posner, have all produced seminal interpretations of our Founding document, but ones that promise to imbue courts with unprecedented powers. While crediting the theorists for the sparkling quality of their thoughts, Judge Wilkinson argues they will slowly erode the role of representative institutions in America and leave our children bereft of democratic liberty.

The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint. The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Each of these seemingly disparate theories promises their followers an intellectually respectable route to congenial political outcomes from the bench. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance, a course that alas may be impossible so long as the cosmic constitutionalists so dominate contemporary legal thought.

Editorial Reviews

Review

"Judge Wilkinson's criticism will serve an invaluable role in the current era of constitutional debate if "Cosmic Constitutional Theory" prompts ideologues of every stripe to examine their own thinking before going on the attack."--Wall Street Journal

"In this book, one of America's most respected judges explains why each of the prevailing academic theories for constitutional interpretation leads only to judicial arrogance, and issues a plea for a return to judicial modesty and restraint from both the right and the left."--Michael McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School and Director, Stanford Constitutional Law Center

"This book is a masterfully succinct gem about law and judging, calling to mind Benjamin Cardozo's The Nature of the Judicial Process and Edward Levi's An Introduction to Legal Reasoning. In an age increasingly marked by interpretive judicial hubris, Cosmic Constitutional Theory is a refreshing, and illuminating, reaffirmation of the virtues of judicial self-limitation."--G. Edward White, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

"Judge Wilkinson has written a brilliant and much needed book. His call for 'judicial modesty' will be controversial on both the left and the right, but it is a welcome antidote to what Wilkinson accurately terms 'cosmic constitutionalism.' Sweeping fiats promulgated from the bench often please liberals or conservatives, yet they are destroying the Founders' design for a restrained judiciary. As Wilkinson argues convincingly, our courts were never meant to be unelected super-legislatures-a concept that directly undermines representative democracy."--Larry Sabato, Director, University of Virginia Center for Politics and Robert Kent Gooch Professor of Politics, University of Virginia

About the Author

J. Harvie Wilkinson III was appointed to the United States Court of Appeals for the Fourth Circuit by Ronald Reagan. He has served on that court since 1984 and as its Chief Judge from 1996 to 2003. He has been frequently on the short list of prospects for the Supreme Court and is regarded as one of the nation's premier appellate jurists. His books include From Brown to Bakke: The Supreme Court and School Integration, 1954-1978. He lives in Charlottesville, Virginia.

Product Details

• Hardcover: 176 pages
• Publisher: Oxford University Press, USA (March 12, 2012)
• Language: English
• ISBN-10: 0199846014
• ISBN-13: 978-0199846016
• Product Dimensions: 5.8 x 0.8 x 8.9 inches
• Shipping Weight: 3 pounds (View shipping rates and policies)
• Average Customer Review: 4.6 out of 5 stars  See all reviews (7 customer reviews)
• Amazon Best Sellers Rank: #215,369 in Books (See Top 100 in Books)
  • #32 in Books > Law > Business > Property
  • #87 in Books > Law > Legal Theory & Systems > Jurisprudence

Most Helpful Customer Reviews

15 of 15 people found the following review helpful

4.0 out of 5 stars Timely, thoughtful look at limitations and drawbacks of modern constitutional law theory March 28, 2012

By E. Jaksetic

Format:Hardcover

The author, a Judge on the U.S. Court of Appeals for the Fourth Circuit, discusses the nature, limitations, and drawbacks of four modern theories of constitutional law: (1) living constitutionalism; (2) originalism; (3) political process theory; and (4) pragmatism. The Judge concludes that: (a) each theory has positive and negative aspects; (b) each theory has more net negatives than positives; and (c) each theory poses risks and threats to the fundamental principle of self-governance by the American people. The Judge also concludes that another theory of constitutional law is not needed, and a new theory of constitutional law is not likely to resolve the kinds of dilemmas and contradictions associated with the four modern theories of constitutional law that he critiques. Unfortunately, the author offers no clear solution or specific recommendation for addressing the problems and dilemmas he identifies with modern theories of constitutional law, but merely offers the hope that judges will cease pursuing grand theories of constitutional law and respect the limits of their authority under the U.S. constitution.

The book addresses the timely and important issue of the proper role of courts under a constitutional system in which the American people -- not judges, lawyers, or government officials -- are the sovereign. Although the book is brief, it succeeds in succinctly identifying the major pros and cons of the four modern theories of constitutional law discussed. The author's failure to offer a clear solution or specific recommendation to addresses the problems of judicial theorizing and judicial overreaching is disappointing, but it does not detract from the value of his insights and cogent critiques of modern theories of constitutional law.... Although written by a Federal Judge, the book is written in a style that is accessible to many readers of the general public.

I strongly recommend this book for any citizen interested in the question of what is the proper role of courts under the U.S. constitutional system, as well as any lawyer or scholar interested in the pros and cons of modern constitutional theories. Although the book is too brief to be considered a detailed or definitive study, it is a good introduction or starting point. Read more ›

17 of 22 people found the following review helpful

5.0 out of 5 stars Explaining the paradox of judicial democracy April 15, 2012

By Alan F. Sewell TOP 1000 REVIEWER

Format:Hardcover|Amazon Verified Purchase

In recent months we have witnessed a most unusual phenomenon. Conservative commentators who for decades railed against "unelected activist judges undermining our democracy" have suddenly started praising the courts as the lynchpins of democracy. Liberals, who for decades viewed the courts as their favorite venues for voiding laws that annoyed them have suddenly mounted a propaganda campaign against the "irresponsible courts overstepping their bounds."

What brought about this sea-change in opinion? Of course a lot of it has to do with the Supreme Court voiding much of the campaign finance laws in "Citizen vs. United" and now perhaps preparing to void the Healthcare Reform Act. The people who criticized the courts before these two decisions now adore them, and vice versa.

It has been apparent from our earliest days that the courts have a Dr. Jekyll and Mr. Hyde character. They are trusted to be the final arbiter of the law, to have the final say not only in common cases of business, but in controversies between congresses and presidents or between the various levels of federal, state, and local governments. To properly adjudicate the fundamental laws of the land, judges are expected to be above politics and the vicissitudes of volatile popular opinion.

But of course judges ARE fallible human beings affected by the same politics as anybody else. If court decisions WERE made on the basis of defined objective principles, all Supreme Court decisions would be rendered unanimously, not split 5 to 4 as most of the important decisions are. So in the end, the federal, state, and local laws are no more and no less than what the federal judges say they are....

It is surely a paradox to say that we live in a "democracy" when the reality is that a majority of five of the nine unelected Supreme Court justices with lifetime tenure trump the elected President, the 535 elected Congresspersons and Senators, the 50 state legislatures, and every state and local court in the nation. The paradox is that an unelected judiciary appears to be essential to preserving democracy. Examples of what happens in countries where the judiciary is weak can be seen in Latin America where all too often the law is whatever the president or junta of the day says it is. Nobody's liberties are safe where the judiciary can be overruled by the whims of chief executives and legislatures.

Americans instinctively understand this paradox. Presidents and Congresses have often criticized the courts, but none has ever succeeded in defying them. Mr. Jefferson famously tried to remove the Federalist "midnight judges" appointed by his predecessor John Adams, and was administered a thumping rebuke not only by Justice Marshall but by his own party in Congress. FDR nearly destroyed his otherwise-popular presidency by attempting to "pack the court" with justices favorable to his views. Now President Obama has embarked on the same unproductive path of trying to influence (intimidate?) the Supremes into reversing their positions.

Thus, as much as we are prone to criticizing the courts, we instinctively understand that they should remain the supreme authority on the law. Who can imagine the nightmare that might have erupted if the Supreme Court had not had the authority to rule against President Nixon in 1974 or to rule that the election of 2000 would not be recounted county-by-county ad-infinitum in Florida? As much as Republicans and Democrats criticized these decisions at the time, the alternative of leaving the issues unresolved would have been worse. Civil wars have often erupted over these very issues.

So, IS there a way to "improve" the decision-making processes of the courts, presumably to make them more true to the Founder's ideals as expressed in the Constitution, without disturbing their cherished role as final arbiters of the law? Judge James Harvie Wilkinson III, a Federal Appellate Judge, sets out to answer that question:

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If some cosmic theorist could capture the Constitution, it might be a real help to those of us in the trenches.
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Even laypersons may suspect that there isn't any "cosmic theory" of the Constitution today because there was no "cosmic theory" at the time that it was written. For example, there is the "Necessary and Proper Clause" stating that the Federal Congress may use any means that it judges to be necessary and proper in "carrying out the execution" of its laws. This idea is then expressly contradicted by the 9th and 10th Amendments in the Bill of Rights, which declare that the Federal Government must operate narrowly within the specific word-by-word confines of the Constitution.

The Obama Administration will argue that the Necessary and Proper Clause gives it the authority to move forward in implementing Healthcare Reform. Opponents will argue that the 9th and 10th Amendments render it unconstitutional. The Supreme Court will decide the case, probably by a 5 to 4 ruling.

Is this the way our democracy HAS to be --- a committee of nine having the final say on whether the most extensive piece of domestic legislation in our generation is valid? But what would be the alternative? Certainly the President should not have the final say. Even our founding philosopher Thomas Jefferson did not hold consistent views on the law. As a young Libertarian he authored the Kentucky and Virginia Resolutions declaring that the states were the final judges of the constitutionality of federal law and thereby entitled to refuse to comply with laws passed by the Federalist Congress and signed by Federalist President John Adams. Later on as President himself he ordered the Navy to blockade the coastline of the Federalist-dominated states that attempted to defy HIS party's laws. After leaving office he advised his protégé James Madison to "employ the drastic measures of hemp and confiscation" i.e. to hang dissident Federalists and confiscate their property.

Jefferson's example shows that almost anyone might play the role of a Libertarian or an Authoritarian depending upon where or not he/she is subject to the authority of government or the person wielding it. The courts, along with the Congress, are there to restrain that authority. In fact the courts have the authority to restrain the President AND the Congress, because there may be times when popular passions are aroused to elect persons of extremist views to both these branches government. On the other hand we shouldn't go to the other extreme of having overly-activist courts running roughshod over presidents and congresses by being too aggressive in nullifying laws they oppose for politically-motivated reasons.

So, is there ANY type of judicial theory that judges might use to guide themselves into striking the perfect balance between reviewing (and sometimes voiding) the laws passed by presidents, congresses, and the states; or of going to the other extreme of arrogantly voiding laws primarily on the basis of political prejudice? Here again Judge Wilkinson makes it clear that not only is there NOT any such theory, but that expecting to find one may actually be dangerous to our liberties:

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MODERN CONSTITUTIONAL LAW has fallen victim to cosmic constitutional theory. Over the last fifty years, we have witnessed the rise of theories that purport to unlock the mysteries of our founding document much as Freud proposed to lay bare all of human behavior and Einstein attempted to explain the universe.....No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.
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Instead of relying on theory, he advocates a return of judges to basic pragmatism:

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So what is my theory? The answer is I have no theory. I offer only a set of worn and ordinary observations that have all been voiced many times before. There is nothing novel in the idea that judges should pay attention to the text, structure, and history of the Constitution and not go creating rights out of whole cloth. Or that judges should appreciate...the other branches of government, the other sovereign that is state government, the other institutions professions, and trades that comprise the private sector. Or that liberty is best safeguarded when the allocation of authority to those others is respected by the courts.....There is nothing remarkable in believing the highest virtues of judging--and of life--are a measure of self-denial and restraint. It is altogether conventional to note that liberty is best preserved under law and that law is something above and apart from the personal preferences of men and women on the bench....The search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.
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Wilkinson seems to be advising judges: "Don't let the power of your special position in government make you arrogant. See all sides of an issue, not just those that conform to your beliefs. Respect the spirit of the Constitution as well as its words."

Good advice for ANYONE in a position of authority, and especially appropriate for judges who ARE the ultimate authority of law in our country. Although most of us will never be judges, there is still relevant advice for "we the people:"

1. We must respect the courts and appreciate that their final judgment of the law is what keeps us a free. If anyone fantasizes about what life would be like under a weak judiciary look no further than Venezuela where judges who rule against the President are jailed. There are all too many examples of a national leader who is popular today becoming a tyrant tomorrow. Our judiciary is the most powerful bulwark against that happening here.

2. The concept of judicial review is an ancient doctrine that we inherited from the English. Justice John Marshall did not invent it single-handedly out of thin air as is often implied in our high school civics classes. It is not the "anti-Constitutional" idea that some Libertarians believe it to be.

3. We must not lose patience with the courts just because their rulings of the day may disappoint us. Abraham Lincoln counseled patience with the Supreme Court at a time when its pro-slavery majority through the "Dred Scott Decision" effectively legalized the possession of slaves in every state. Lincoln pointed out that courts had been known to reverse their earlier decisions and that the Supreme Court would surely reverse "Dred Scott" as newer members more in tune with the times were appointed. In our own time we have seen the Supreme Court become the guarantor of Civil Rights for all races.

Let us respect the courts and trust that the judges will in turn continue to give due consideration to their responsible role in preserving our liberties. Wilkinson advises judges to justify our respect by abandoning the quest for "cosmic" theories of constitutional law and focus instead on the pragmatic level of making fair-minded decisions case-by-case. Read more ›

2 of 2 people found the following review helpful

4.0 out of 5 stars Fair and balanced view of the role of judiciary July 15, 2012

By J. Davis

Format:Hardcover

CCT is a much better book than I expected. I knew the author was a conservative appointed by Bush II and I expected a one-sided criticism of liberal "activist" judges. That was not the case; he criticizes both liberal and conservative exponents of what he considers impractical theories. I especially liked his criticism of the two major constitutional philosophies of the day: "living consitutionalism" on the left and "originalism" on the right. Wilkinson concedes both have some value, but are oversimplified and ultimately destructive views of the role of the judiciary. He calls for modesty and restraint from the judiciary, asking judges to defer to the legislative branch except when there are clear violations of the Constitution. he argues that under the constitutional framework, the judiciary's role was meant to be secondary in importance to the legislative/executive, which are more accountable to the population's wishes.

What I found confusing was his criticisms of Cass Sunstein's legal theories. As I understood it, Sunstein called for a similar restrained approach, which he labels "minimalism". (To be sure, I read Sunstein's book over five years ago, so I might be mistaken). I can't comment too much on Wilkinson's long dissection of John Hart Ely's theories, not ebing too familiar with Ely's writings. These points notwithstanding, I highly recommend reading CCT. It is a thoughtful, objective book with a strong argument at its core.

2 of 3 people found the following review helpful

5.0 out of 5 stars The Reasons for Activist Judges on the Supreme Court May 17, 2012

By J. Groen VINE™ VOICE

Format:Kindle Edition|Amazon Verified Purchase

This book provides the reasons why there are activist judges on the Supreme Court. These judges justify their activism through "theories" of how to interpret the Constitution.

All of these theories are flawed. The author provides the pros and cons of each theory and focuses on the impact of these.

He starts with the "living constitution" theory that was actively pursued in the 1950s, did good work in the initiating the civil rights era (with the Brown vs. Board of Education ruling in 1954) but then caused problems with faulty decisions leading especially to what is arguably the worst decision of the 20th century (Roe v Wade and the legalization of abortion). The author emphasizes that the Supreme Court judges had no constitutional basis for that ruling.

Then he goes on to the conservatives response to that theory - the "originalism" approach to interpreting the constitution. That one started shortly after the previous theory and is used extensively today. Again, he goes through the pros and cons and leads to two faulty decisions that used this theory - the decisions that reversed gun ownership laws in Washington DC and Chicago. Again, he emphasizes that the Supreme Court may have had basis for the ruling in the 2nd amendment, but you can read in the Constitution that the Federal Government doesn't have the authority to rule on this local issue.

He then proceeds with the "political process" and "pragmatism" theories. I won't go through these although he uses the same approach, pros and cons, and impact.

He finishes with a plea that the Supreme Court should be very careful in ruling against laws that have been made by the Federal Government and local governments, including states.... He recommends that the political process deal with this, despite its flaws, and rationalizes that the politicians are closer to the people and their wishes than the judges.

The only issue that I have with this book is his comments regarding potential Supreme Court repeal of ObamaCare. He ignores that the fact that if the individual mandate of ObamaCare stands, then there is no limit on what the Congress can force the public to purchase. This precedent would have a huge negative impact on individual freedom.

I highly recommend this book for anyone interested in the Constitution and the Supreme Court. Read more ›