The Magazine

Show Some Restraint

The Constitution is imperiled from the bench.

Sep 24, 2012, Vol. 18, No. 02 • By TERRY EASTLAND
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Our government is not a pure democracy but a constitutional republic, meaning that we govern ourselves in accord with the Constitution, which provides for a Supreme Court with the authority to review and strike down laws that are in conflict with the Constitution. In Cosmic Constitutional Theory, J. Harvie Wilkinson III argues that the Court has nullified many more laws on constitutional grounds than it should have. The Court has been activist when it should have been restrained, displacing democracy in each of its unwarranted rulings.

‘The Supreme Court—as it may hereafter be constituted’ by Frederick Burr Opper (

‘The Supreme Court—as it may hereafter be constituted’ by Frederick Burr Opper (1896)

Library of Congress

Wilkinson is a federal judge, a 1984 Reagan appointee to the U.S. Court of Appeals for the Fourth Circuit. Widely respected, he was on President Bush’s 2005 shortlist for the Supreme Court. Wilkinson is also an engaging writer who finds time away from the bench to craft articles and books on legal topics. Here, he takes up the controversial topic of judicial, also known as constitutional, review. 

The activist trend Wilkinson decries dates to the last century, when the Court created substantive rights from the Fourteenth Amendment’s guarantee of due process—one of the more amazing alchemies in American constitutional law—and voided laws regulating their exercise. The first such substantive due-process rights were mainly economic ones: In the infamous Lochner (1905) case, for example, the Court struck down New York’s bakery labor laws. In time, however, the “new” substantive due-process rights—those of privacy and autonomy—came, and with them the right of abortion, declared by the Court in Roe v. Wade (1973) and whose protection entailed the invalidation of almost every state abortion law.

Also on Wilkinson’s list of activist cases are: Swann v. Charlotte-Mecklenburg Board of Education (1971), which, ordering busing as a remedy for school segregation, gave federal courts “the broadest equitable powers over local school districts in contravention of every constitutional model of dual sovereignty”; Furman v. Georgia (1972), which, notwithstanding the Constitution’s implicit sanction of the death penalty, “imposed a de facto moratorium on capital punishment”; District of Columbia v. Heller (2008), which invalidated a Washington, D.C., firearms regulation by declaring a strong individual right to bear arms, and McDonald v. City of Chicago (2010), which “incorporated this newfound right against the states”; Bush v. Gore (2000), which, effectively resolving the presidential election, cut short the recount “on contestable equal protection grounds”; and Boumediene v. Bush (2008), which, affording greater habeas corpus access to Guantánamo detainees, “encroached on the diplomatic and military options of the executive and the initiatives of Congress with dubious regard for the Constitution’s allocation of authority.”

The problem of activism that Wilkinson addresses, however, is about more than a decision in this or that case; constitutional law, he writes, has fallen victim to “cosmic constitutional theory.” By this, he means theory that seeks “to unlock the mysteries” of our supreme law and provide judges with a “grand and unifying vision” that can be applied in constitutional cases. Such “cosmic” theories have proliferated in recent decades, writes Wilkinson, and he devotes the bulk of his study to critiques of the main cosmic theories and their variants: living constitutionalism, originalism, “political process,” and pragmatism.

Wilkinson concisely observes their “virtues” and “vices” before rejecting them all. Their common defect, he declares, is that while they say they promote judicial restraint, they actually promote the opposite.

Readers will note that one of the theories Wilkinson opposes is originalism, a method of constitutional interpretation that seeks to discern the original intent or meaning of the provision at issue. Originalism dates from the Founding era and has been influential in recent decades among judicial conservatives especially, its most prominent advocates being Robert Bork and Antonin Scalia. Wilkinson’s position here is a reminder that not all judicial conservatives—and Wilkinson is fairly described as one—embrace originalism.

On the other hand, it is not clear from Cosmic Constitutional Theory that Wilkinson stands that far apart from the originalists. At the end, he says that “not all theories are equal,” meaning that “some make far more of an effort to rein in runaway judicial rulings than others.” In a fair reading of Cosmic Constitutional Theory, Wilkinson can be referring only to theories of originalism.

Moreover, he clearly has deep respect for the historical Constitution whose meaning originalists seek. Consider his critique of Roe v. Wade. The case flunks “the three most basic interpretive tests,” he states—those of text (there being nothing in the Constitution suggesting that “a right of abortion should be grafted onto a highly generalized right of privacy”); structure (there being nothing in the structure of the Constitution indicating that “judges were to substitute their own will on the [abortion] question for that of the states and the elected branches”); and history (there being “nothing in the history of the Fourteenth Amendment suggest[ing] that its framers had abortion or anything like it on their minds”).
Most originalists would concur.

Wilkinson-versus-the-originalists aside, his interest is not in showing a causal connection between a particular theory and a decision in every activist case. His point is about the future. Cosmic theory has come to dominate the way the legal profession (and, indeed, the educated public) thinks about constitutional law, with judicial restraint effectively kicked to the side. We now have “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.” Inevitably, whether advanced in particular cases or not, cosmic theory will have more and more influence among judges and justices:

The ingredients of the cosmic theories are so stacked against self-governance that the temptations for judicial misadventures will only increase in years to come.

Our future is a “judicial hegemony” in which democratic liberty has been more and more circumscribed.
Wilkinson argues that the only way to prevent this future is to eschew grand theory (“what’s needed is not yet another theory but an escape from theorizing”) and to see the merits of restraint. Cosmic theory proves to be the bête noire of Cosmic Constitutional Theory: Wilkinson writes that the Constitution is not an abstraction, and not as amenable to theory as it is to experience. Indeed, the Constitution was “designed to resist answers and incorporate tensions rather than yield its secrets to a single or comprehensive viewpoint.” Judicial restraint, on the other hand, accepts the Constitution as written, and needs no theory for its interpretation.

Still, Wilkinson offers, if not a theory, certainly an argument for judicial  restraint—which, he acknowledges, is not mentioned in the Constitution. It is a strong argument, grounded in the structure of the Constitution and holding that the grants of power in Articles I, II, and III “leave no doubt that the powers of the executive and legislature call for active initiation, while the power of the courts is passively framed.” Not only is judicial restraint a “bedrock principle of America’s founding,” it also rests upon a premise of republican government, which is that those in power “less fettered by such formal restraints as periodic elections” (meaning judges) “must feel more constrained to hold themselves into check.”
Here, Wilkinson understands judicial restraint as republican virtue, by which the Founders meant decisions or actions that put first the common good. Not surprisingly, as Wilkinson observes, judicial restraint is often referred to as judicial self-restraint. The subtle move Wilkinson makes is from theory to character.

If Judge Wilkinson is right about the need for more republican virtue on the bench, it is sobering to wonder whether the sources of such virtue (schools, churches, and families, in the Founders’ estimation) are up to the task of helping generate it. If they aren’t, the threats to democratic liberty may be even greater than he contends in this tightly written, provocative book.

Terry Eastland, publisher of The Weekly Standard, is the editor of Freedom of Expression in the Supreme Court: The Defining Cases.