Saturday, November 24, 2012
Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance. Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint. Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.
Cosmic Constitutional Theory, part of Oxford's Inaliable Rights Series, surveys the "grand and unifying" constitutional theories--living constitutionalism, originalism, political process theory, textualism, minimalism, cost-benefit pragmatism, active liberty, and moralism--and argues that they have empowered judges at the expense of the democratic branches. Judge Wilkinson explains:
No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.
Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results. In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced. But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.
And at another point:
Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.
But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted. And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one. Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:
Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.
They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born. One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.
Judge Wilkinson's solution is not a new theory. He declines to advance one. Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell. According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."