Adam White Reviews Wilkinson’s Cosmic Constitutional Theories

April 15th, 2012

The review is here.

J. Harvie Wilkinson’s “Cosmic Constitutional Theory” departs from those well-rehearsed patterns. The author, a highly regarded federal judge, writes not to praise any particular constitutional school of thought but to bury them all.

The dominant theories of constitutional law are”cosmic,” Judge Wilkinson argues, because they “purport to unlock the mysteries of our founding document much as Freud proposed to lay bare all of human behavior and Einstein attempted to explain the universe.” The comparisons call to mind Justice Oliver Wendell Holmes, a century ago, scoffing at intellectuals and judges who treated law as if it were rooted in sacred, secret mystery—”a brooding omnipresence in the sky.” Like Holmes, Judge Wilkinson urges judges to practice”restraint,” leaving many more constitutional issues to be decided by elected officials, not unelected judges.

Judge Wilkinson focuses on four “cosmic” constitutional theories, each anchored in the writings of its major advocates. In a chapter called “Living Constitutionalism,” he discusses the late Justice William Brennan’s belief in aggressively expanding constitutional protections to achieve liberal political reform, ranging from racial integration to expanded rights for criminal defendants and prisoners. The “Originalism” chapter deals with Judge Robert Bork’s and Justice Antonin Scalia’s calls on judges to interpret the Constitution according to the Framers’ intent. In “Political Process Theory,” Judge Wilkinson discusses the late legal scholar John Hart Ely, who urged judges to promote well-functioning and equitable democratic processes, preventing majorities from oppressing minorities. The chapter called “Pragmatism” gives us Judge Richard Posner, who argues against abiding by ideological theories and recommends that courts maximize the overall public good instead.

For all the theories’ differences, Judge Wilkinson finds each undermined by the same root flaw—not a lack of theoretical detail or elegance but a lack of real constraint on judicial power. Accordingly, they are “nothing less than competing schools of liberal and judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.” The ultimate victim, he says, is “democracy itself, which theory has emboldened judges to displace.”

Adam’s reaction was similar to mine–Posner’s refusal to adopt a theory is a theory in of it itself.

But after criticizing originalism and the other “cosmic” theories, Judge Wilkinson, in a brisk epilogue, admits that he cannot offer a comprehensive alternative. “The answer is I have no theory,” only “a set of worn and ordinary observations that have been voiced many times before”—namely, a general tradition of judicial “self-restraint” that favors federalism and only rarely imposes constitutional rights to overturn the results of democratic self-rule.

Yet it is hard to see how such a generalized policy survives Judge Wilkinson’s own strict scrutiny. His approach seems to differ little in practice from Mr. Posner’s pragmatism, opening Judge Wilkinson to the same criticism that he levies at Mr. Posner: “There are just too many questions, and they are all too difficult, for the approach to result in anything other than judicial guesswork.” Still, Judge Wilkinson’s criticism will serve an invaluable role in the current era of constitutional debate if “Cosmic Constitutional Theory” prompts ideologues of every stripe to examine their own thinking before going on the attack.

Totally unrelated, but Adam has a knack for writing about all the things I find interesting, so I pay attention to his work carefully. We met several years at a FedSoc lunch in DC by chance (I think it was something at Tony Cheng’s), and have stayed in touch. He is someone to keep an eye on.