- 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: 1.6 pounds (View shipping rates and policies)
- Average Customer Review: 11 customer reviews
- Amazon Best Sellers Rank: #867,775 in Books (See Top 100 in Books)
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Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights) 1st Edition
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"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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The nuttiness continues. Since publication of Wilkinson's book in 2012, we have the Supreme Court's decision mandating same-sex marriage in all fifty states, and in the past couple years, federal courts have routinely voided duly-enacted state legislation dealing with topics such as voter identification and protection of small businesses that decline to provide services at same-sex wedding ceremonies. The criticism is the same-- none of these matters are mentioned in the federal constitution and the decisions undermine self-governance.
Wilkinson's book disappoints in two respects. First, the reader will have to read every sentence in the book twice, or three times, to figure out what point Wilkinson is trying to make. The prose is stilted and turgid.
Second, Wilkinson declines, in his final chapter, to recommend a theory of constitutional interpretation that would rein in the activist judiciary. At best, he encourages federal judges to show 'self-restraint.' Good luck with that!
But there is plenty that Congress could do to restrain activist judges. First, Congress has the authority to restrict the jurisdiction of the federal courts. Second, if that is not adequate, Congress could propose a constitutional amendment that confines 'judicial review' to matters that are *explicitly* mentioned in the US 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.