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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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.