In the spring of 1971, Robert Bork visited the University of Indiana law school to give a lecture on constitutional interpretation and the First Amendment. Bork was still a professor in those days, at Yale. And despite that association, he was still able to claim at the outset of his talk, without a hint of facetiousness, that a “persistently disturbing aspect of constitutional law is its lack of theory.” That was a more innocent age.
Today constitutional theories abound, thanks in part to Bork himself. His Indiana lecture rehearsed the rudiments of what would become his theory of originalism. Scores of others would soon follow: living constitutionalism, pragmatism, process theory, popular constitutionalism, common law constitutionalism, higher lawmaking, ethical theories, and the “moral reading” approach, to name just a few—and that’s not counting the various and ever-multiplying iterations of originalism itself. Nor has the impulse to theorize been confined to the academy. In the last decade and a half, Justices Scalia and Breyer have both written book-length treatments of the subject; the Seventh Circuit’s Richard Posner has written multiple books; and numerous other jurists have pitched in fulsomely in formats from opinions, to articles, to speeches. If the last forty years of constitutional law can be called anything, surely they can be called the age of theory.
None of this, according to Judge J. Harvie Wilkinson III, is worth celebrating. In his slender new book, Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance, the long-time member and former chief justice of the Fourth Circuit Court of Appeals takes dead aim at the theory-lust consuming constitutional law and argues that it is corrupting the judicial craft. Worse, Wilkinson says, it is corroding constitutional democracy. Wilkinson pleads for an end to the grand theorizing that he says tempts judges to activism and arrogance, and calls instead for a return to “the republican virtue of judicial self-restraint.”
That reference to “republican virtue” is a clue to the sensibility at the heart of this book. Wilkinson ran for Congress before beginning his career in the law, at the tender age of 26. He lost, but apparently never abandoned his profound respect for what other judges sometimes derisively call the “political branches.” Wilkinson will have none of that. Indeed, one gets the distinct impression reading his book that Wilkinson thinks constitutional democracy is mainly about what those other branches do, not his own. “[T]he faith of the Framers lay at the end of the day,” he reminds his readers, “with the organs of government more proximate to the people,” not with the judiciary.
All this is right and good—and much the strongest part of the book. Wilkinson forcefully argues that for all its complexity and nuance, the Constitution ultimately works toward one purpose: democratic self-government. This is an insight lost on most purveyors of high theory. Since the great efflorescence of theorizing in the early 1970s, scholars have claimed to locate the Constitution’s most fundamental meaning in its protection of individual autonomy or the rights of “discrete and insular minorities,” or perhaps in the promotion of free markets and enterprise. But Wilkinson rightly insists that the Constitution in fact aims at something rather different and more. It is, in all its parts, calibrated to sustain a particular way of life. Namely: cooperative, participatory self-government, carried on through rule by the majority, which is in turn conditioned and limited by respect for the fundamental rights of all.
The problem with sweeping accounts of constitutional meaning, Wilkinson contends, is that they screen out this commitment to self-government and treat the Constitution as a series of doctrines to be explained and synthesized, rather than as a framework for democratic living. And if one regards the Constitution in this way, as something that can be “bottled and pasteurized,” as Wilkinson puts it, one risks upsetting the roles the Constitution assigns to the different branches and to the states. To be more precise, one risks judicial supremacy. Judges are already prone, Wilkinson warns, to elitism and an elevated view of their importance. Judging-by-theory only excites their worst inclinations, encouraging them to substitute their own views for those of the legislature and to mistake their own moral and policy preferences, however sincere or profound, for those of the law. If not checked, Wilkinson concludes, judging-by-theory will “tak[e] us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.”
Wilkinson’s critique of grand theory is pointed and well-put. It functions not so much as a response to any particular method of interpretation—Wilkinson attempts to parse four of the more prominent ones, with mixed results—but as a complaint about the attitude of judicial superiority that seems to underlie them all.
But having demonstrated a link between totalizing theory and judicial aggrandizement, Wilkinson cannot quite get clear on why the judicial activism he dreads is, well, wrong. And that causes serious trouble. The result is confusion at the heart of Wilkinson’s argument that threatens to undermine the whole of his critique.
At times, Wilkinson seems to suggest that any exercise of judicial review is suspect—or at least, any exercise that invalidates a major piece of legislation. He warns conservatives off challenging President Obama’s individual mandate, for instance, claiming that any ruling to hold “that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy” would be interpreted as “purely political.” He similarly counsels judicial abstention on the question of same-sex marriage. In both cases, Wilkinson contends that judicial intervention would fail to respect the prerogatives of the elected branches.
Yet Wilkinson is not ready to foreswear judicial review altogether. He acknowledges that the judiciary must intervene sometimes, in at least some cases, even if it means displacing policies adopted by democratic majorities. He admits for example that Brown v. Board, Gideon v. Wainwright, Reynolds v. Sims, and Miranda v. Arizona were all appropriate judicial interventions—but having made these concessions, must fall back to contend that “I doubt there are now Browns and Gideons waiting to be born.”
This will not do, and Wilkinson seems to know it. He wants to argue that certain sorts of judicial intervention are not just impolitic, but illegitimate. This is in fact what gives his case against judicial activism its righteous tone. Yet the only criterion he offers for what counts as legitimacy is the ideal of judicial restraint. Restraint, of course, is generally a good thing in a judge, but as a standard by which to divide legitimate from illegitimate exercises of judicial authority, it’s not much use. Restraint is a practice, not a principle; it describes judicial behavior we think is appropriate, suitable, recondite—in a word, legitimate. It cannot tell us what action is legitimate to begin with.
Wilkinson’s confusion on this score is nowhere more evident than in his discussion of originalism. He fiercely criticizes the Supreme Court’s recent decisions in Heller v. District of Columbia and McDonald v. Chicago, reserving special ire for Justices Scalia and Thomas as the court’s leading originalists. Wilkinson regards the judgments in these cases as entirely inappropriate—nay, illegitimate—on a level, he says darkly, with Roe v. Wade. But why illegitimate? Because they were a species of “originalist activism,” an “unconstrained incursion” that “[d]isenfranchis[ed] democratic majorities across the nation.”
To the court’s claim that the judgments rested on text, structure, and history, Wilkinson replies that this evidence was inconclusive in both Heller and McDonald. But he is not content to rest there. Determined to show that only an ethic of restraint can harness judges’ ambitions, he contends that evidence from text, structure, and history is likely to be inconclusive in most cases. Indeed, Wilkinson goes further still, and asserts that arguments from text, structure, and history simply cannot be applied in a neutral fashion. “[T]here is no principled way to deem certain sources valid and others not,” he concludes. Moreover, there is no principled way to locate the textual command one is supposed to be applying. Instead, according to Wilkinson, echoing originalism’s academic critics, the originalist method involves multiple levels of irresolvable indeterminacy. In the end, text, structure, and history only invite judges to cloak their subjective preferences in the guise of objectivity. Wilkinson ultimately endorses Judge Posner’s dictum that originalism “is not an analytic, but a rhetoric that can be used to support any result the judge wants to reach.”
This is strong stuff, and more than a little puzzling from a judge widely regarded as an originalist and who writes elsewhere—in the same book—that “textual, structural, and historical methods” should generally “guide” judicial decisionmaking. One rather hopes he does not quite mean all he says in skewering Scalia and Thomas, his erstwhile fellow travelers. Because if he does, we are left with this: Heller and McDonald were badly mistaken in his view, they were unrestrained, precisely and only because they failed to observe the “old judicial values of humility and restraint.” That is incoherence. By elevating judicial restraint to the place of fundamental principle, Wilkinson denies himself the ability to say which behavior is truly restrained and which is not.
His critique need not succumb to such circularity. Wilkinson could avoid this confusion by remembering his defense of self-government. The Constitution does indeed embrace democratic self-rule as its purpose and aim, and it assigns the courts a particular role in that project. Courts are (among other things) to enforce the limits on government action and majority rule that make democratic life possible, liberal, and just. This means courts must sometimes act against the wishes of the elected branches, and even the people. And so a balance must be struck between majority rule and judicial review. But the source of that balance is in the Constitution itself, the document that creates the federal judiciary and sets out the limits of its authority.
That means that text, structure, and history are not merely one set of tools among others for discerning the Constitution’s meaning. Nor are they, properly speaking, another “theory” of constitutional interpretation, however they might be deployed in various theoretical constructs. They are, rather, the source of the judiciary’s authority and the only legitimate guide to judicial review.
Wilkinson is surely right that arguments from constitutional text can conceal a judge’s personal preferences as well as any other style of argument. That is the trouble with judges being human. And he is also right to counsel originalists to think twice before invalidating whole swaths of law and policy crafted by the elected branches. If the Constitution’s text is the only legitimate source of judicial authority, then judges must stop where the text stops, and ties must go to the legislature.
But the remedy to judges’ natural tendency toward activism, as to the broader enfeebling of self-government that Wilkinson laments, is not less fidelity to the commands of the Constitution, but more. We do indeed need judges, as Wilkinson says, committed to the “tired old judicial values of humility and restraint”—and that means judges committed to the project of self-rule and the Constitution that preserves it.
Joshua D. Hawley is an Associate Professor of Law at the University of Missouri law school. He is a former clerk to Chief Justice John G. Roberts, Jr., and the author of Theodore Roosevelt: Preacher of Righteousness (Yale Press, 2008). This essay was originally published in July 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.