Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, J. Harvie Wilkinson III. Oxford University Press, 2012. 176 pages, hardcover, $21.95.
Cosmic Constitutional Theory is the third volume in the Inalienable Rights Series. This particular volume is authored by J. Harvie Wilkinson III. Widely regarded as one of the most respected judges in the country, Wilkinson has served on the United States Court of Appeals for the Fourth Circuit for more than 20 years and has been on the short list for the Supreme Court. Unlike the other authors in this series, Wilkinson does not advocate for any one particular theory of constitutional interpretation, nor does he offer up his own theory. Instead, he argues that the prevailing theories have done more harm than good and that there should be a return to judicial restraint. Because of its focus on the current theories of constitutional interpretation, this book would be a great addition to any academic legal library or any library that focuses on constitutional law and theory.
The bulk of Wilkinson’s book is spent critiquing the four leading constitutional theories of today: Living Constitutionalism, Originalism, Political Process Theory, and Pragmatism. The text of the book consists of a short introduction and five relatively brief chapters followed by extensive endnotes, an acknowledgement, and an index. The first four chapters each cover a different academic theory of constitutional interpretation. For each of the four leading constitutional theories, Wilkinson begins with a description and brief history, touching upon the proponents of the theory and how each theory has been applied from the bench. Once the basics are out of the way, he focuses on each theory’s virtues and then finally its vices.
The first theory critiqued is Living Constitutionalism, which the author titles “activism unleashed.” Chapter two then tackles the next most prevalent theory, Originalism, which the author describes as “activism masquerading as restraint.” Chapter three discusses the Political Process Theory, which focuses more on the judicial process than on the outcomes. Last, the fourth theory covered, which was not meant to be a theory but more of an alternative system of review, is Pragmatism. When analyzing each theory, Wilkinson doesn’t just describe its negative points; he also makes an attempt to list its positive applications. However, in the fifth and final chapter, despite any virtue a theory may have, Wilkinson argues they all have failed and are a threat to our democracy.
Throughout the book, Wilkinson argues that while each theory is advanced as an answer to the problems of constitutional interpretation, they are actually threatening the public’s ability to self-govern. According to Wilkinson, issues that used to be decided by the people are increasingly being decided by the courts, with judges no longer practicing judicial restraint but instead promoting competing political theories. The author does not offer a theory of his own, instead arguing that we do not need another theory since all of the theories that have previously been offered have failed. In the place of a theory, Wilkinson calls on judges to exercise judicial restraint.
This book is well written and extremely easy to follow. It could easily serve as a basic introduction to constitutional theory with its thorough description of the pros and cons of each competing theory.
Lisa Watson is government documents librarian at Elon School of Law in Greensboro, North Carolina.