Cosmic Constitutional Theory Why Americans Are Losing Their Inalienable Right to Self-Governance

Author: J. Harvie Wilkinson, III
Publisher: Oxford University Press USA
ISBN: 9780199846016
Published In: September 2012
Format: Hardback , 176 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

Out of stock

Description
Contents
Author

Details

Argues that "big" general theories of constitutional interpretation - both on the right and on the left - are ultimately both pointless and harmful.
Provides numerous engaging examples and ties his discussion to contemporary constitutional problems that are of interest to the general reader
Written by one of the most prominent and widely respected jurists in the United States

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.

Readership: Readers of TIME, Newsweek, The New Yorker, The New York Times, The Atlantic, and other major periodicals. Students and scholars of law, particularly constitutional law.

Editor's Note
Introduction
I. Living Constitutionalism: Activism Unleashed
II. Originalism: Activism Masquerading as Restraint
III. Political Process Theory: A Third Way Down the Rabbit Hole
IV. Pragmatism: Activism Through Antitheory
V. The Failure of Cosmic Constitutional Theory

J. Harvie Wilkinson, III, U.S. Circuit Judge, Fourth Circuit Court of Appeals

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.