Instant Review: Cosmic Constitutional Theory by Judge J. Harvie Wilkinson

February 17th, 2012

Here are my initial thoughts about Judge Wilkinson’s new book, Cosmic Constitutional Theory. I hope to turn this, preferably soon, into a book review.

Much like most judges who write books about their philosophies (Scalia, Breyer, Posner, etc.) there aren’t many surprises here. Anyone who has followed Judge Wilkinson’s jurisprudence over the last few years knows what he thinks. He disapproves of all constitutional theories. He dislikes originalism. He wrote a prominent articles after Heller lambasting Justice Scalia’s opinion which let the dead of hand of Madison take away the people’s right to self-representation. He dislikes living constitutionalism, for obvious reasons–not a fan of Roe. He dislikes Breyerian and Posnerian pragmatism, thinks its a ruse. His entire jurisprudence is grounded on judicial minimalism, in the Sunstein school, whereby he wishes to leave to the people the right to determine what they want to do.

So what is my theory? The answer is I have no theory. I offer only a set of worn and ordinary observations that have all been voiced many times before. There is nothing novel in the idea that judges should pay attention to the text, structure, and history of the Constitution and not go creating rights out of whole cloth. Or that judges should appreciate “otherness”—the other branches of government, the other sovereign that is state government, the other institutions, professions, and trades that comprise the private sector. Or that liberty is best safeguarded when the allocation of authority to those others is respected by the courts. There is nothing new in the thought that life tenure provides the occasion not for expanding power but for appreciating its limitations. There is nothing remarkable in believing the highest virtues of judging—and of life—are a measure of self-denial and restraint.

I have found many critiques of originalism, living constitutionalism, and pragmatism, but the challenges to minimalism are, well, minimal. No longer. My turn.

Here’s where Wilkinson’s theory breaks down:

It is true, of course, that Lochner and its progeny gave interventions into economic regulation a bad name. But that setback to judicial expansionism was limited and temporary. A new form of intervention arose, this one focused on civil rights and liberties. Major activist decisions of the Warren Court—Brown v. Board of Education,19 Gideon v. Wainwright,20 Reynolds v. Sims,21 and Miranda v. Arizona22—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.

Beyond Gerard Magliocca’s astute comment comparing Wilkinson to “the United States Patent Commissioner in the late nineteenth century that everything that could possibly be invented had already been invented,” (this is similar to Justice Scalia’s “water-under-the-bridge” and “get-over-it” jurisprudence) what is unanswered is what constitutes “vindicat[ing] foundational principles essential to the functioning of our nation.”

What are these foundational principles? Well presumably, principles that are foundational derive from–what for it–the foundation of our nation. And the foundation of our nation is–wait for it–it depends who you ask!

Originalists would say the foundation of our nation is the Constitution as understood by the founders. Where better to get foundational principles than from the founding–the sine qua non of originalism. Living Constitutionalists would say the foundation of our nation is (insert ACS witty something such as ) We the People, Liberty, Freedom, whatever. Pragmatists will take a Jacksonian perspective, and say the foundation of our nation is the balanced functioning of our republic (Constitution not a suicide pact).

And what are these principles to Judge Wilkinson. Well, on my quick read (I’ll track it much more closely later), he seems to identify one foundational principle:

One foundational premise of the American experiment is that self-determination is a valuable good. . . .

So, somehow, Wilkinson needs to derive from principle from somewhere. I presume he gets this from the federalism provisions of the Constitution, and the direct-election provisions (there is not a self-determination clause).

And, how do Brown, Gideon, and Miranda fit in with these unidentified (cosmic?) founding principles? No effort to explain these away from Judge Wilkinson. In fact, the above-quoted section are the only references to Miranda and Gideon in the entire book. There are many citations to Brown, but none answer my question. And are there any other cases on this canonical list? Or is this trio it.

Back to Brown, to paraphrase Stephen Colbert’s interview with Justice Stevens–Is Brown v. Board a great opinion, or the greatest opinion?

None of this is to deny, however, that rank discrimination against historically disadvantaged groups was a blight upon this country that living constitutionalism did well to alleviate.

Whether Brown or Marbury v. Madison was the Court’s most important decision may be debatable, but what cannot be disputed is that modern America’s debt to the Brown Court is incalculable.

So if Brown, Gideon, and Miranda are such outliers that will never repeat, I suppose we can play with some hypotheticals. Let’s assume Judge Wilkinson sat on the Fourth Circuit in the early 20th century instead of the late 20th century. I think one of the cases that was consolidated in Brown v. Board of Education began in Wilkinson’s beloved home-Commonwealth of Virginia. Had he sat on that panel, what would have have done? If WIlkinson had a case in the early 1960s involving a criminal defendant who was interrogated without knowing his rights, what would he have done? Or perhaps a more plausible question, would he have joined the Fourth Circuit’s opinion in Dickerson, finding that Congress abrogated Miranda (if it is not a foundational principle, surely the elected branches could get rid of it!)? On what foundational premises would have considered Gideon? Plessy? Dred Scott (no 14th Amendment, yet)? And the list goes on and on.

And what about VAWA? Lest we forget that Judge WIlkinson concurred in Judge Luttig’s quite-originalist en banc opinion (relying on an originalist Lopez opinion) finding that VAWA was unconstitutional, in what ultimately became United States v. Morrison.

As this century draws to a close, it seems appropriate to examine the course of its jurisprudence 890*890 and the place of this case within it. The decision before us is an especially difficult one because it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint.

I agree that section 13981 of the Violence Against Women Act exceeds the authority of Congress under both the Commerce Clause and Section 5 of the Fourteenth Amendment. Our ruling reaffirms the fundamental principle that our national government is one of enumerated—and therefore limited—powers. See, e.g., United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Nonetheless, it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies. In particular, “[t]he history of the judicial struggle to interpret the Commerce Clause … counsels great restraint before [we] determine[] that the Clause is insufficient to support an exercise of the national power.” Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). I would add to that cautionary tale not only the judiciary’s parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today’s decision in light of history’s often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.

(spends several paragraph attacking three stages of activism he doesn’t like– Lochner, Social (including GIdeon, Brown, two of his favorites, but not Miranda), and Rehnquist federalism, which he likes

The common thread of contemporary activism is an interest in reviving the structural guarantees of dual sovereignty. For instance, Congress may not stretch the commerce power so far as to regulate noncommercial areas of traditional state concern— activity that “has nothing to do with `commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Nor may Congress “define its own powers by altering the Fourteenth Amendment’s meaning.” City of Boerne, 117 S.Ct. at 2168. The Court has preserved the states’ immunity in federal court, defending their right not to be sued without consent. See Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114, It has enforced the “etiquette of federalism,” Lopez, 514 U.S. at 583, 115 S.Ct. 1624 (Kennedy, J., concurring), barring Congress from “commandee[ring] the legislative processes of the States,”New York, 505 U.S. at 161, 112 S.Ct. 2408 (internal quotation marks omitted), and forbidding the national government from “impress[ing] the state executive into its service” by “command[ing] the States’ officers … to administer or enforce a federal regulatory program.”Printz, 117 S.Ct. at 2371, 2384.

Taken as a whole, the decisions preserve Congress as an institution of broad but enumerated powers, and the states as entities having residual sovereign rights.

As abbreviated as the preceding discussion is, it will suffice to pose the critical question. Will the current era of judicial scrutiny stand the tests of time and public acceptance any better than the prior eras have? The facial similarities between the present jurisprudence and the New Deal era underscore the dilemma. Yet upon closer scrutiny, the current wave of judicial decisions bears little relation to those which crested early in this century. If one remains attentive to the pitfalls of the past, the present jurisprudence holds the promise to be an enduring and constructive one, for its aims and means differ significantly from those of prior eras.

So is striking down a law based on Section V appropriate? Curiously, Wilkinson has this to say in his book:

Then too the supposedly nonactivist Rehnquist Court limited Congress’s powers under the commerce clause14 and Section 5 of the Fourteenth Amendment (VAWA),15 though such interventions hardly penetrated the core of legislative prerogative and had the beneficial effect of enhancing the democratic process in the several states.

Could not the same be said about the health care challenge? Nope.

Conservatives, for example, may understandably regard the 2010 health care reform bill as a leviathan crammed with unknown mischiefs, but to invalidate it on originalist grounds will require analysis that had best be better than good. The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy judicial lift. Any decision that is less than bulletproof will be seen as a purely political undertaking, a revival of Lochner’s freedom of contract theory in originalist guise.

Was Morrison Lochner? Guess not.

That’s the gist.

A few other points, not really in any particular order.

First, I will bring up arguments I made against Wilkinson in Originalism for Dummies way back when I was a 3L in response to his UVA law review article.

On that article, also Lund and Kopel’s pwnage (which makes many of the same arguments I did) will be used. Plus Judge SIlberman’s attack on Wilkinson:

Next came the Virginia Law Review article published by Jay Wilkinson, which must have been rushed into print directly after the Supreme Court’s opinion. Judge Wilkinson did not offer his own analysis of the Second Amendment. He merely took Justice Stevens’s opinion, juxtaposed it against Justice Scalia’s, and concluded the issue was a close call. Therefore, in his view, the majority should have deferred to legislation. In an extraordinary analogy, he comparedthe majority opinion to Roe v. Wade. Of course, Roe is based on wholly fictitious constitutional language – it is a jurisprudential castle in the sand – whereas the Second Amendment is real constitutional wording.

Plus I have a number of blog posts looking at WIlkinson’s work.

This analysis of his opinion in Masciandaro, and this post about his judicial restraint.

Stay tuned.