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Original Essays | September 18, 2014

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Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights)

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Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights) Cover

 

Synopses & Reviews

Publisher Comments:

American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms regulations, health care reform and counterterrorism efforts, not to mention a millennial presidential election, are more and more the domain of judges.

What sparked this development? In this engaging volume, Judge J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. Thinkers as diverse as Justices William Brennan and Antonin Scalia, Professor John Hart Ely, Judges Robert Bork and Richard Posner, have all produced seminal interpretations of our Founding document, but ones that promise to imbue courts with unprecedented powers. While crediting the theorists for the sparkling quality of their thoughts, Judge Wilkinson argues they will slowly erode the role of representative institutions in America and leave our children bereft of democratic liberty.

The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint. The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Each of these seemingly disparate theories promises their followers an intellectually respectable route to congenial political outcomes from the bench. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance, a course that alas may be impossible so long as the cosmic constitutionalists so dominate contemporary legal thought.

About the Author

J. Harvie Wilkinson III was appointed to the United States Court of Appeals for the Fourth Circuit by Ronald Reagan. He has served on that court since 1984 and as its Chief Judge from 1996 to 2003. He has been frequently on the short list of prospects for the Supreme Court and is regarded as one of the nation's premier appellate jurists. His books include From Brown to Bakke: The Supreme Court and School Integration, 1954-1978. He lives in Charlottesville, Virginia.

Table of Contents

Editor's Note

Introduction

I. Living Constitutionalism: Activism Unleashed

II. Originalism: Activism Masquerading as Restraint

III. Political Process Theory: A Third Way Down the Rabbit Hole

IV. Pragmatism: Activism Through Antitheory

V. The Failure of Cosmic Constitutional Theory

Product Details

ISBN:
9780199846016
Author:
Wilkinson, J Harvie
Publisher:
Oxford University Press, USA
Author:
Wilkinson, J. Harvie
Author:
Wilkinson, "J. Harvie, Iii"
Subject:
Patent, Trademark, Copyright
Subject:
Law | Constitutional Law
Subject:
Constitutional
Subject:
Law : General
Publication Date:
20120331
Binding:
HARDCOVER
Language:
English
Pages:
176
Dimensions:
5.7 x 8.6 x 0.9 in 0.75 lb

Related Subjects

History and Social Science » Law » Constitutional Law
History and Social Science » Law » General
History and Social Science » Law » Legal Guides and Reference
History and Social Science » Politics » General
Humanities » Philosophy » General

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