Cosmic Constitutional Theory

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right To Self-Governance, J. Harvie Wilkinson III, Oxford University Press, $21.95.

Cosmic constitutionalism characterizes competing schools of liberal and conservative activism, seeking to achieve partisan results from the bench. In this concise and powerful book, Judge J. Harvie Wilkinson III calls for judicial modesty. It is argued that sweeping judgments unduly overstep the limits of the judicial function and undermine the role of representative institutions. While seminal cases such as Brown v. Board of Education – which condemned de jure segregation in public schools – were necessary at a time when the impetus could not be expected to come from the elected branches of government, today judges should prefer judicial restraint over intervention when a constitution is silent.

In a true democracy it is the role of legislatures, rather than courts, to update social norms. Judge Wilkinson builds his argument on strong premises. Firstly, as non-elected bodies, courts are less able than legislatures to assess the content of society’s values. Secondly, the nature of the judicial function – mainly based on precedents – is ill suited to react to changing circumstances. Finally, judicial activism that anticipates social change frustrates the democratic process. Constitutional provisions in the US leave no doubt that Congress is meant to ensure the broad representation of the people whereas the role of the courts is passive. As an independent branch of government, the judiciary is meant to provide stability and continuity in society, acting as a safeguard against the infringement of fundamental rights and liberties. Constitutional interpretation should thus remain a form of legal reasoning grounded in a textual and original understanding of the Constitution.

Yet, with presidents on the Left and the Right relying on the Supreme Court to uphold their political agenda, the day has passed when Wilkinson’s thoughtful theory could prevail in the US. Nonetheless, when judges ignore the limits of the law and venture into policy-making on issues such as gun control, abortion or same-sex marriage, we should stop listening. Because, as the author says, “to supplant the diverse voices of an infinitely pluralistic people with one true and only word is an act whose enormity should never fail to register.”

–A. S.