Cosmic Constitutional Theory

Why Americans Are Losing Their Inalienable Right to Self-Governance
1. Auflage 2012
ISBN: 978-0-19-984601-6
Verlag: OXFORD UNIV PR

Buch, Englisch, 176 Seiten, Format (B × H): 145 mm x 222 mm, Gewicht: 358 g

Reihe: Inalienable Rights

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.

Zielgruppe

Readers of TIME, Newsweek, The New Yorker, The New York Times, The Atlantic, and other major periodicals. Students and scholars of law, particularly constitutional law.

Autoren/Hrsg.

Wilkinson, J. Harvie

Fachgebiete

• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein
• Rechtswissenschaften Bürgerliches Recht Sachenrecht
• Rechtswissenschaften Öffentliches Recht
• Sozialwissenschaften Politikwissenschaft Politische Systeme Staats- und Regierungsformen, Staatslehre

Inhaltsverzeichnis

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

Über Autor(innen)

Wilkinson, J. Harvie
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.