March 18, 2012

SELF-GOVERNANCE SUFFICES:

Against Interpretation: a review of COSMIC CONSTITUTIONAL THEORY: Why Americans Are Losing Their Inalienable Right to Self-Governance By J. Harvie Wilkinson III (JEFFREY ROSEN, 3/18/12, NY Times Book Review)

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.

Unless such laws run afoul of liberty concerns the courts ought not even accept cases about them.



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Posted by at March 18, 2012 8:10 AM
  

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