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. …