The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson III's Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance

Abstract

A distinguished federal appellate judge, J. Harvie Wilkinson III, has an exasperated message for constitutional theorists: A plague on all your houses! This short review demonstrates that Judge Wilkinson’s proposed alternative to all constitutional theories, which he calls “judicial restraint,” is actually a confused mélange of judicial activism and judicial abdication. The review concludes by suggesting a different form of judicial restraint, and one that is consistent with the constitutional theory of originalism.

Keywords: Alden, Antonin Scalia, Blaisdell, commerce, constitutionalism, decency, equality, Earl Warren, evolving standards, framers, human dignity, John Hart Ely, justice, living, originalism, political process, pragmatism, Richard Posner, Robert Bork, society, textualist, Thayer, Thornton, William Brennan