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Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights) 1st Edition

4.6 out of 5 stars 9 customer reviews
ISBN-13: 978-0199846016
ISBN-10: 0199846014
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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.
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Product Details

  • Series: Inalienable Rights
  • Hardcover: 176 pages
  • Publisher: Oxford University Press; 1 edition (March 12, 2012)
  • Language: English
  • ISBN-10: 0199846014
  • ISBN-13: 978-0199846016
  • Product Dimensions: 8.6 x 0.9 x 5.7 inches
  • Shipping Weight: 3 pounds (View shipping rates and policies)
  • Average Customer Review: 4.6 out of 5 stars  See all reviews (9 customer reviews)
  • Amazon Best Sellers Rank: #587,073 in Books (See Top 100 in Books)

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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.
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Format: Hardcover 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.
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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.
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Format: Kindle Edition Verified Purchase
An evenhanded over view detailing how the judiciary has run amok, substituting personal opinion for constituional priciples. Should be read by everyone interested in preserving constitutional government.
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