About Constitutional Interpretation

Against Interpretation
‘Cosmic Constitutional Theory,’ by J. Harvie Wilkinson III
By JEFFREY ROSEN
Published: March 16, 2012

In courts and law schools across America, the most intense legal battles are fought over theories of constitutional interpretation. From the originalists on the right to the living constitutionalists on the left, each of the warring camps claims that it has discovered the true faith and accuses its opponents of hypocrisy. Now comes Judge J. Harvie Wilkinson III with a bracingly clear and bipartisan message: All the theories are bunk! According to Wilkinson’s “Cosmic Constitutional Theory,” “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.” As a result of their cosmic theorizing, Wilkinson concludes, liberal and conservative judges and justices are too quick to second-guess the choices of legislatures, and the casualty is “our inalienable right of self-governance.”

COSMIC CONSTITUTIONAL THEORY

Why Americans Are Losing Their Inalienable Right to Self-Governance

By J. Harvie Wilkinson III

161 pp. Oxford University Press. $21.95.
Wilkinson, who was appointed to the United States Court of Appeals for the Fourth Circuit by Ronald Reagan, is one of the most respected appellate judges in the country; he was on President George W. Bush’s shortlist for the Supreme Court. It’s not surprising that he indicts liberal justices like William Brennan for embracing a theory of living constitutionalism that “led the courts deep into the thickets of abortion, capital punishment and habeas corpus” by encouraging them to update the Constitution in light of contemporary values. While praising the living constitutionalists for “giving the elected branches leeway to craft fruitfully modern definitions of terms like ‘equality’ and ‘commerce,’” Wilkinson sharply criticizes Roe v. Wade, which he says “flunked simultaneously the three most basic interpretive tests” — it was unsupported by constitutional text, history or structure.

More surprisingly, however, Wilkinson is just as critical of the jurisprudence of original understanding, embraced by Justices Antonin Scalia and Clarence Thomas. Calling originalism a form of “activism masquerading as restraint,” he says that the methodology “fails to constrain judicial choices” when the historical evidence is ambiguous, which it is in every hard case.

Wilkinson is withering about the Supreme Court’s recent decisions striking down gun control laws under the Second Amendment, which he compares to Roe v. Wade in their tendency to impose “judicial value judgments based on thin and shaky grounds.” He warns that a Supreme Court decision overturning health care reform would be just as activist as one legalizing gay marriage, although he approves of gay marriage, but not President Obama’s health care reform (“seems misconceived in many ways”), on policy grounds. And he has no patience for Bush v. Gore, which he calls “no friend of self-governance.”

Wilkinson also extensively criticizes Judge Richard Posner and his methodology of constitutional pragmatism, which endorses the idea that judges should be policy makers. “Arming judges with reams of data and telling them to go about doing empirical good encourages aggressive review and substitutes judicial fiat for representative policy making,” he writes.

Having expressed dissatisfaction with the leading cosmic constitutional theories for “abetting judicial hubris,” Wilkinson confesses that he has no theory to offer as a substitute. Instead, he points to those great judges in the past “who took the habit of deference seriously,” including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, John Marshall Harlan and Lewis Powell Jr. These justices rarely struck down laws passed by Congress or the states, unless the constitutional arguments for invalidation were so clear that both liberals and conservatives could readily embrace them.

Why is it that not a single justice exemplifies this tradition of bipartisan judicial deference today? Now that the left and the right rely on the Supreme Court to reverse their defeats in the political arena, presidents of both parties are unlikely to pick nominees who believe the court should strike down very few laws. Instead, the liberal and conservative bases demand ideologically reliable nominees who are not very likely to disappoint them. The day has passed when a thoughtful conservative like Wilkinson, who refuses to toe the party line on guns or Bush v. Gore, could be appointed.

Is there any possibility of resurrecting the tradition of judicial restraint that Wilkinson exalts? Probably not on the current polarized Supreme Court, where neither side is willing to uphold the laws it dislikes the most, since it doesn’t trust the other side to do the same. As Wilkinson warns, for conservatives, restraint would mean that “gun rights and property rights not ride so high in the saddle. . . . For liberals, it means that unenumerated rights of choice not reign free of the need to accommodate conflicting moral and communal values.”

Nevertheless, this modest book is an invaluable reminder of the lost virtues of bipartisan judicial restraint. For law students and citizens who are frustrated with the way that all the constitutional methodologies fail, in practice, to deliver on their promise of helping judges separate their political views and judicial decisions, Wilkinson’s primer offers a diagnosis of the problem and a self-effacing solution. As he suggests, the great proponents of restraint in the past, like Holmes and Brandeis, embodied a spirit of humility rather than a grand theory; they displayed “modesty” about their own views “and respect for the opinions and judgments of others.” For embodying the same sensibility, Wilkinson’s book is both unusual and inspiring.