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Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance
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.
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.
- GenresLawPoliticsNonfiction
176 pages, Hardcover
First published February 13, 2012
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Displaying 1 - 10 of 10 reviews
November 3, 2017
I have always felt vaguely uncomfortable with grand constitutional theories – maybe because most of them are too complicated and abstract for the average layperson to understand, which is a big problem in a system based on the consent of the governed. In this book, Judge Wilkinson explains why he has a problem with constitutional theories. He does an excellent job of it, too.
Judge Wilkinson tackles four theories: living constitutionalism, originalism, political process theory, and pragmatism. For each, he explains the theory, its virtues, its vices, and how it is used as a cover for judicial activism.
Living constitutionalism is the easiest to take apart, because it proposes that the meaning of the constitution changes and that judges get to declare what it currently means. In other words, unelected lawyers get to change the fundamental law of the land. That is a breathtaking proposition if you believe that the people are sovereign in our system of government.
A lot of the same problems are present in political process theory and pragmatism. Political process theory is the idea that judges should intervene when laws impede political change or discriminate against political minorities. Under this theory, judges get to decide what kind of political changes are not okay to impede and how to define minority status, not to mention what kinds of legislative goals will be weighty enough to withstand these attacks. And pragmatism is no good because it invites judges to substitute their judgment for a legislature’s about what law will lead to the best results for society. In all of these theories, one small elite subgroup (judges) of one profession (lawyers) gets to decide basic questions about policy, morality, culture, democracy, and many other things, and how to properly balance them all. That takes the responsibility and the right away from the people and their representatives, and that is bad for self-government.
The most interesting discussion in this book for me is about originalism. Simplistically stated, originalism is the idea that the meaning of the Constitution is determined by what the people understood it to mean and the time of ratification. Wilkinson criticizes originalism because it does not always yield a clear result. Thus, it can be used as a cloak for judicial activism. Of course, many constitutional questions are hard and it may be difficult to find the right answer. But originalism seems to rein in judicial discretion more than the other theories by at least limiting the range of possible answers to those supported by text, history, and structure.
The book is a very good discussion of the shortcomings of theories and even theory in general – after all, “the life of the law has not been logic; it has been experience.” The problem with it is that it offers no good alternative. Judge Wilkinson suggests that judges should be more restrained. But restraint itself is often used as an excuse for reaching a desired result – it’s as useless as the term “judicial activism” is. If a judge likes a certain law, he or she exercises “judicial restraint;” if the judge dislikes it, restraint must make way for some other countervailing interest.
In the end, I am glad I read this book. It is excellent. But it does not change my belief that the Constitution must be read the way that those who gave it legitimacy read it. That is the only defensible theory for someone that believes in the sovereignty of the people and the rule of law.
Judge Wilkinson tackles four theories: living constitutionalism, originalism, political process theory, and pragmatism. For each, he explains the theory, its virtues, its vices, and how it is used as a cover for judicial activism.
Living constitutionalism is the easiest to take apart, because it proposes that the meaning of the constitution changes and that judges get to declare what it currently means. In other words, unelected lawyers get to change the fundamental law of the land. That is a breathtaking proposition if you believe that the people are sovereign in our system of government.
A lot of the same problems are present in political process theory and pragmatism. Political process theory is the idea that judges should intervene when laws impede political change or discriminate against political minorities. Under this theory, judges get to decide what kind of political changes are not okay to impede and how to define minority status, not to mention what kinds of legislative goals will be weighty enough to withstand these attacks. And pragmatism is no good because it invites judges to substitute their judgment for a legislature’s about what law will lead to the best results for society. In all of these theories, one small elite subgroup (judges) of one profession (lawyers) gets to decide basic questions about policy, morality, culture, democracy, and many other things, and how to properly balance them all. That takes the responsibility and the right away from the people and their representatives, and that is bad for self-government.
The most interesting discussion in this book for me is about originalism. Simplistically stated, originalism is the idea that the meaning of the Constitution is determined by what the people understood it to mean and the time of ratification. Wilkinson criticizes originalism because it does not always yield a clear result. Thus, it can be used as a cloak for judicial activism. Of course, many constitutional questions are hard and it may be difficult to find the right answer. But originalism seems to rein in judicial discretion more than the other theories by at least limiting the range of possible answers to those supported by text, history, and structure.
The book is a very good discussion of the shortcomings of theories and even theory in general – after all, “the life of the law has not been logic; it has been experience.” The problem with it is that it offers no good alternative. Judge Wilkinson suggests that judges should be more restrained. But restraint itself is often used as an excuse for reaching a desired result – it’s as useless as the term “judicial activism” is. If a judge likes a certain law, he or she exercises “judicial restraint;” if the judge dislikes it, restraint must make way for some other countervailing interest.
In the end, I am glad I read this book. It is excellent. But it does not change my belief that the Constitution must be read the way that those who gave it legitimacy read it. That is the only defensible theory for someone that believes in the sovereignty of the people and the rule of law.
September 18, 2017
I think a lot of the Republicans and conservatives, as well as the Democrats and more liberal folks - all experts in their own inflated egos - will blast this as heresy and say this judge should be removed. I, for one, found most of the discussion in this book right on the mark from a man who is certainly a constitutional expert.
The author, a federal judge, puts on a spirited rebuke to a lot of today's "progressive thinkers" and many of our elected officials, primarily against the Constitution being a living document that needs to be reinterpreted to "fit" today's thinking, the will of the majority and, my personal pet peeve, how the wants (vs. needs) of the many outweigh the rights of the few.
The author provides a good argument of how judges should not be defining their own versions of legislating from the bench.
Overall, I think this should be recommended reading to most of the so-called "experts" who are spouting their opinions on CNN, FOX, MSNBC, and other venues - rather than what they "believe" should be the rule / law, maybe people should take a step back and actually read what the Constitution says and how those laws have been applied by the courts over the years?
The author, a federal judge, puts on a spirited rebuke to a lot of today's "progressive thinkers" and many of our elected officials, primarily against the Constitution being a living document that needs to be reinterpreted to "fit" today's thinking, the will of the majority and, my personal pet peeve, how the wants (vs. needs) of the many outweigh the rights of the few.
The author provides a good argument of how judges should not be defining their own versions of legislating from the bench.
Overall, I think this should be recommended reading to most of the so-called "experts" who are spouting their opinions on CNN, FOX, MSNBC, and other venues - rather than what they "believe" should be the rule / law, maybe people should take a step back and actually read what the Constitution says and how those laws have been applied by the courts over the years?
December 7, 2025
Judicial restraint is viewed as paramount in enforcing a fair and equal constitutional democracy.
4 types of theories and their pitfalls:
- Living constitutionalism:
Replaces constitution with a program for advancing human dignity. The theory was originally intended to make marginal advances but has been blown out of proportion by activists judges. Often liberals.
- Originalism:
Developed as antidote to living constitutionalism. Judges to seek the original intentions behind the framers of the constitution. The pitfall is that the constitution is very vague and the framers original intentions are often unknown leading to the judges once again making up their own decisions. Often Conservatives.
- Process Theory:
Attacking the process in which the law deemed as inhibiting to political change. This leads to our judges being the ones to decide what needs to be changed in our nation, something that is inherently un-democratic.
- Pragmatism:
Cast aside other theories and only act in the cases that are deemed necessary. This works in idea but since judges have political and practical agendas too the restraint is cast aside whenever they see fit.
4 types of theories and their pitfalls:
- Living constitutionalism:
Replaces constitution with a program for advancing human dignity. The theory was originally intended to make marginal advances but has been blown out of proportion by activists judges. Often liberals.
- Originalism:
Developed as antidote to living constitutionalism. Judges to seek the original intentions behind the framers of the constitution. The pitfall is that the constitution is very vague and the framers original intentions are often unknown leading to the judges once again making up their own decisions. Often Conservatives.
- Process Theory:
Attacking the process in which the law deemed as inhibiting to political change. This leads to our judges being the ones to decide what needs to be changed in our nation, something that is inherently un-democratic.
- Pragmatism:
Cast aside other theories and only act in the cases that are deemed necessary. This works in idea but since judges have political and practical agendas too the restraint is cast aside whenever they see fit.
August 21, 2013
I have wanted to read this book for a while. I respect his criticism of the main theories of interpretation - living constitution, originalism, process theory, and pragmatism - but I came away no more convinced that his overall point was right; namely, that if judges didn't adhere to broad frameworks that the people wouldn't expect so much out of the Court. I think people have expected a lot of the Court for a long time, but especially since Roe, and I don't think you can put the toothpaste back in the tube. Still, it was an interesting read because Judge Wilkinson is so bright and a good writer.
January 30, 2014
This book is a good summary of the major theories of constitutional interpretation. The author then points out the flaws in each of them, and there are many flaws to point out. The main message of the book is that while judges proclaim that they read the constitution using a particular analytic viewpoint, they really let their own personal or political feelings sway the process. The secondary message is that judges need a little humility and should not to be too doctrinaire in constitutional analysis.
This book is probably too dry and arcane for the average reader, but scores points with people in the legal profession.
This book is probably too dry and arcane for the average reader, but scores points with people in the legal profession.
December 1, 2012
This book presents a strong argument for judicial restraint, and a clear explanation of why no one seems to exhibit any. Every judge has his theory on how to interpret the Constitution, and is willing to let it override the voice of the people and their elected representatives. Wilkinson outlines the current prevailing theories, examines their strengths and weaknesses, and shows how each can lead to despotism.
September 11, 2013
A short book but a very clear appeal to the judiciary to exercise restraint. The 3rd branch of our government has no right to engage in manipulating society and imposing social change - that is what the voters through their elected legislatures are supposed to do. Judges are only to interpret the law without using their position to push their own political agendas.
January 8, 2015
A well-argued plea for a return to pure judicial restraint of the Frankfurter/Harlan/Jackson era. Wilkinson, one of our better circuit court judges, does a fine job of describing how goofy much post-1960 constitutional law is.
July 5, 2016
Interesting analysis of constitutional jurisprudence, but seems off the mark substantively when it comes to the practicality of settling constitutional issues. In the name of judicial modesty, it defers too heavily to the legislative branches.
September 9, 2016
If teaching a course on constitutional theory, you'd be hard pressed to find a better closing piece than this. Judge Wilkinson acts as something of a canary in the judicial coal mine.
Displaying 1 - 10 of 10 reviews