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

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Overview


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 ...

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Overview


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.

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Editorial Reviews

From the Publisher

"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

Jeffrey Rosen
…this modest book is an invaluable reminder of the lost virtues of bipartisan judicial restraint. For law students and citizens who are frustrated with the way that all the constitutional methodologies fail, in practice, to deliver on their promise of helping judges separate their political views and judicial decisions, Wilkinson's primer offers a diagnosis of the problem and a self-effacing solution. As he suggests, the great proponents of restraint in the past, like Holmes and Brandeis, embodied a spirit of humility rather than a grand theory; they displayed "modesty" about their own views "and respect for the opinions and judgments of others." For embodying the same sensibility, Wilkinson's book is both unusual and inspiring.
—The New York Times Book Review
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Product Details

  • ISBN-13: 9780199846016
  • Publisher: Oxford University Press, USA
  • Publication date: 3/9/2012
  • Series: Inalienable Rights Series
  • Edition description: New Edition
  • Pages: 176
  • Sales rank: 691,971
  • Product dimensions: 5.80 (w) x 8.60 (h) x 0.80 (d)

Meet 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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Table of Contents

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

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Customer Reviews

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