A Restrained Plea for Judicial Restraint

By Graglia, Lino A. | Constitutional Commentary, Spring 2014 | Go to article overview

A Restrained Plea for Judicial Restraint


Graglia, Lino A., Constitutional Commentary


COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE. J. Harvie Wilkinson III. (1) 2 3 New York, N.Y.: Oxford University Press. 2012. Pp. xii + 161. $21.95 (cloth).

I. THE PROBLEM: POLITICAL JUDGING

Judge J. Harvie Wilkinson III's slim volume, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, is a heartfelt but somewhat contradictory plea for judicial restraint and protest of judicial supremacy. There can be no doubt there is reason for complaint. It has become routine and unquestioned that the most basic issues of contemporary public policy, such as corporate campaign contributions, (3) gun control, (4) term limits, (5) same-sex marriage, (6) and voting rights, (7) are to be decided not by elected legislators, state or federal, but for the nation as a whole by majority vote of the nine Supreme Court Justices. Given the pronounced four-four liberal-conservative split on the present Court, they are typically decided, as was each of the noted issues, by a single vote, the vote of Justice Kennedy, making him arguably our most important public official in terms of domestic social policy, performing a role similar to that of the Ayatollah in Iran. This is not the "Republican form of Government" promised by the Constitution (8)

It is not "cosmic constitutional theory," however, that has taken us "down the road to judicial hegemony" (p. 4), as Judge Wilkinson thinks, although he admits that "the justices do not go around citing theorists" (p. 8), and those "inclined to find their own political preferences in the Constitution can accomplish that goal without the assistance of theory" (p. 9). The fact, however, is that the Constitution--and therefore theories of constitutional interpretation--have very little to do with the Court's constitutional decisions or, at least, its rulings of unconstitutionality. Rarely does a ruling of unconstitutionality turn on an issue of interpretation. The basis of the consistent and predictable liberal-conservative split of the Justices, almost regardless of the issue, is ideological, not semantic, the result of different policy preferences, not different ways of reading the Constitution. No one believes, presumably, that the liberals consistently vote to protect and the conservatives to limit abortion rights, (9) for example, because they find different meanings in "due process," the ostensible basis of the abortion decisions.

But even if constitutional theory "does not provide the rationale for politicized judging," Judge Wilkinson argues, "it at least provides the cover, making the expedition into activism appear more respectable or more defensible than it otherwise would" (p. 9). He provides "admittedly an arbitrary and far too abbreviated list" (p. 6) of supposed theories of constitutional interpretation: "the living constitutionalism of William Brennan, the originalism of Robert Bork, the political process theory of John Hart Ely, the textualism of Hugo Black, the minimalism of Cass Sunstein, the cost-benefit pragmatism of Richard Posner, the active liberty of Stephen Breyer [and] the moral readings of Ronald Dworkin" (p. 5). The remainder of the book mercifully consists of discussion of only four of these: living constitutionalism, originalism, political process theory, and pragmatism, devoting a chapter to and analyzing the "vices" and "virtues" of each.

II. THE SOLUTION: NONPOLITICAL ORIGINALISM

Judge Wilkinson castigates them all in that their "great casualty ... has been our inalienable right of self-governance" (p. 9). His many so-called theories of interpretation, however, basically reduce to two: originalism and non-originalism, neither of which is really a theory of interpretation. Originalism, the view that the Constitution should, like any writing, be understood to mean what its authors intended it to mean is less a theory of interpretation than a statement of what, in ordinary usage, interpretation means. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Restrained Plea for Judicial Restraint
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.