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Wednesday, September 05, 2012
Review of Judge Wilkinson's Book
I have a review of Judge J. Harvie Wilkinson III's book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, over at The New Republic. I have the rough sense that my take is generally more positive than what I've seen from other legal academics and commentators (and I was grateful for the skepticism I received about this essay when it was in draft).Posted by Marc DeGirolami on September 5, 2012 at 01:12 AM | Permalink
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Comments
Great job, Mark, as always. For what it's worth, I'm fairly sympathetic to Judge Wilkinson's (and your?) take, but I think he overstates his critique of originalism. Sure, there is the potential for abuse connected with the method, as with any method, but I've found his criticisms of (if I remember correctly) Heller and Citizens United (both of which seem quite clearly correct to me, and not for any "cosmic" reasons) overdone. The challenge, as I see it, is not in "being restrained", full stop, but in distinguishing the situations (and there *are*, almost everyone admits, such situations) when judicial invalidation is required by the judge's oath from those when it is not. No small challenge, right? =-) After all the "right to self-governance", while "inalienable", is not absolute. We've ruled out -- self-paternalism, and all that -- certain outcomes, and I think (at *some* point) courts may and must enforce the constraints that we put on ourselves.
Posted by: Rick Garnett | Sep 5, 2012 1:53:29 PM
Does Wilkinson offer a view as to why his approach is the right one? From the review he seems to just assume that it is, or else to assume that what ever view best serves democracy is the right one and then that his approach best serves democracy, but that is, at least, not obvious. I have sympathy with a fair amount of judicial deference, but it seems that he also needs an account as to why his version of it is a good one. From your review it sounds like he both doesn't have such a theory and thinks he doesn't need one. If that's an accurate account, I think he's pretty confused.
Posted by: Matt | Sep 5, 2012 3:36:20 PM
Rick, thanks, I'll paste my response to you that I put down initially at MOJ, and then get to Matt.
For Rick: I agree with much of the substance of your comment. Actually, I don't think I am at all a judicial restraintist full stop. I have a very different view of what the right role for the judiciary ought to be in cases of constitutional conflict, and it's a lot more ambitious than a hard theory of restraint would allow (though it is not driven by a cosmic constitutional theory...as you know!). I find some of, e.g., Judge Posner's criticisms of restraint pretty persuasive, and I have ambivalent feelings toward those writers who are sometimes regarded as the big-time representatives of judicial restraint (I feel most conflicted and unsure about Bickel).
I probably am closest to the Wilkinsonian position in this book when it comes to the overarching critique of constitutional theory (including, it's fair to say, of originalism; though I can agree that his position may be a bit overstated, I may be slightly more skeptical than you are about the capabilities of originalism), even though I found myself disagreeing with portions of the book there too. I also do think that Judge Wilkinson is onto something important and true when he describes the foreignness of talk of judicial restraint today, and the suspicions that it elicits (see, for example, Ronald Dworkin's speculations in the NYRB). And I bet JW would agree with you about the limits of restraint as well.
For Matt: yes, he does offer such a view in the book, though I would characterize his view as not completely worked out, and more about the nature of the judicial role and what it implies about the function of interpretation than a theory of interpretation per se. His view depends on accepting the premise that a more restrained understanding of the judicial role is healthy for constitutional law, as it will mean that people will be prompted to take greater stewardship of constitutional governance (and so it is "democratic" in that sense). One can, I suppose, dispute that prediction (though I take his point also to be a normative one about what constitutional governance ought to be about). As for why I did not discuss it (more) in the review, I guess I talked about those features of the book which were of greater interest to me, but I also think that the features I talked about were the most prominent ones in the book.
Posted by: Marc DeGirolami | Sep 5, 2012 4:36:58 PM
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