Book Review: <i.Cosmic Constitutional Theory</i>

Abstract

This is a book review of Cosmic Constitutional Theory by J. Harvie Wilkinson, III, a federal judge on the 4th Circuit Court of Appeals. Judge Wilkinson believes that modern constitutional law has fallen victim to “cosmic constitutional theories” — theories that purport to unlock the mysteries of the founding document on a sweeping basis. Judge Wilkinson is anti-theory, whether it arises from the ideological left, the ideological right, or somewhere in between. In his assessment, both liberal and conservative theorists, though imparting some important insights, have fallen woefully short of providing the grand and unifying constitutional vision they profess to conceive. He argues that overly zealous theorizing has led to the subordination of judicial restraint. As a result, the courts have been politicized and the right of self-governance has been debased. In separate chapters, Judge Wilkinson considers four cosmic theories of constitutional interpretation: living constitutionalism, originalism, political process theory, and pragmatism. In a concluding chapter, he discusses the failure of cosmic constitutional theories in general and explains why he believes that cosmic theorizing is leading to judicial hegemony and loss of self-governance. The review surveys each of the chapters and examines Judge Wilkinson’s assessment of each cosmic theory. The review concludes with an in-depth evaluation of Judge Wilkinson’s analysis, noting that his book suffers from a basic failure to confront the reality that law and policy are inherently intertwined. Moreover, Judge Wilkinson’s refusal to countenance any theorizing leaves a void in the process of constitutional interpretation. He argues for judicial restraint, but fails to define what he means by judicial restraint or delineate its scope in constitutional adjudication.