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Cosmic approach to judging



Published: Thu, April 19, 2012 @ 12:00 a.m.

WASHINGTON

Judge J. Harvie Wilkinson III, a Reagan appointee to the 4th U.S. Circuit Court of Appeals, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance” (Oxford).

A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” originalism and constitutional pragmatism. Each, he says, abets judicial hubris, leading to judicial “activism.”

Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.

‘Introverted’ profession

Wilkinson is right that judges, comprising an elite and “introverted” profession, are prone to misreading the values of the broader society. But even if judges read those values correctly, judicial restraint can mean giving coercive sweep to the values of contemporary majorities. That a majority considers something desirable is not evidence that it is constitutional.

One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive.

Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like, and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”

Insisting that “the republican virtue of restraint requires no cosmic theory,” Wilkinson’s recurring refrain is that judges should be disposed to defer to majorities, meaning the desires of political, popularly elected institutions. But because deference to majority rule is for Wilkinson a value that generally trumps others, it becomes a kind of cosmic theory — a solution that answers most vexing constitutional riddles.

Wilkinson’s premise is that “self-governance,” meaning majority rule, is the “first principle of our constitutional order.” But this principle, although important, is, in fact, secondary. A vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone’s borders.

Implementation document

The Constitution is a companion of the Declaration of Independence, and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” pre-existing rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty.

Wilkinson cites Justice Oliver Wendell Holmes as a practitioner of admirable judicial modesty. But restraint needs a limiting principle, lest it become abdication. Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” No, a judge’s job is to judge, which includes deciding whether majorities are misbehaving at the expense of individual liberty.

The Constitution is a document, one understood — as America’s greatest jurist, John Marshall, said — “chiefly from its words.” And those words are to be construed in the bright light cast by the Declaration. Wilkinson worries about judges causing “an ever-increasing displacement of democracy.” Also worrisome, however, is the displacement of liberty by democracy in the form of majorities indifferent to or hostile to what the Declaration decrees — a spacious sphere of individual sovereignty.

Washington Post Writers Group


Comments

1Mikey(11 comments)posted 2 years, 2 months ago

As usual, when I read George Will's columns, I get so distracted by the grammar, the long sentences, the unfamiliar word usage, the flat out wordsmithing that's almost impossible to follow, I just give up on the whole article. 39 words in my sentence. George W would just be getting through the adverbs and adjectives and yet to use the first verb. Mr. Will could have said Republican appointed judges are noble and good while Democratic appointees are evil and intent on subverting America. He would have shortened it up considerably and got the same point across in one sentence. The problem is that no one will pay him to write a one sentence editorial. I hope the Vindicator believes they got their money's worth. Between George Will, Cal Thomas,Thomas Sowells and the occasional entry from the Heritage Foundation, one would think that Youngstown, Ohio is some sort of hot bed of conservative political thought. Can all the republican elected officials in Youngstown or in Mahoning County government please stand up. Whoa! Slow down, not so fast! But what did catch my attention is the capitalization of the word Hell. Justice Olvier Wendell Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” First of all, I've never seen the word hell capitalized before. I don't know if capitalizing the word hell is proper. Maybe the court could rule on that. We'd probably get a 5-4 decision in favor of capitalization with Scalia being the most Presumptuous or is it Blasphemous? And Roberts looking for a Minimalist outcome saying that Hell should be capitalized only at the start of a sentence. Justice Kennedy would wonder aloud that if hell is capitalized, should heaven and purgatory also be capitalized? George Will should stick to baseball and leave the profound legal theories to Clarence Thomas and the republican think tanks, or is it Republican Think Tanks?.

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