Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

• Author: Graglia, Lino A.
• Position: Book review

COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE. J. Harvie Wilkinson III. (1) 2 3 New York, N.Y.: Oxford University Press. 2012. Pp. xii + 161. $21.95 (cloth).

1. THE PROBLEM: POLITICAL JUDGING

   Judge J. Harvie Wilkinson III's slim volume, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, is a heartfelt but somewhat contradictory plea for judicial restraint and protest of judicial supremacy. There can be no doubt there is reason for complaint. It has become routine and unquestioned that the most basic issues of contemporary public policy, such as corporate campaign contributions, (3) gun control, (4) term limits, (5) same-sex marriage, (6) and voting rights, (7) are to be decided not by elected legislators, state or federal, but for the nation as a whole by majority vote of the nine Supreme Court Justices. Given the pronounced four-four liberal-conservative split on the present Court, they are typically decided, as was each of the noted issues, by a single vote, the vote of Justice Kennedy, making him arguably our most important public official in terms of domestic social policy, performing a role similar to that of the Ayatollah in Iran. This is not the "Republican form of Government" promised by the Constitution (8)

   It is not "cosmic constitutional theory," however, that has taken us "down the road to judicial hegemony" (p. 4), as Judge Wilkinson thinks, although he admits that "the justices do not go around citing theorists" (p. 8), and those "inclined to find their own political preferences in the Constitution can accomplish that goal without the assistance of theory" (p. 9). The fact, however, is that the Constitution--and therefore theories of constitutional interpretation--have very little to do with the Court's constitutional decisions or, at least, its rulings of unconstitutionality. Rarely does a ruling of unconstitutionality turn on an issue of interpretation. The basis of the consistent and predictable liberal-conservative split of the Justices, almost regardless of the issue, is ideological, not semantic, the result of different policy preferences, not different ways of reading the Constitution. No one believes, presumably, that the liberals consistently vote to protect and the conservatives to limit abortion rights, (9) for example, because they find different meanings in "due process," the ostensible basis of the abortion decisions.

   But even if constitutional theory "does not provide the rationale for politicized judging," Judge Wilkinson argues, "it at least provides the cover, making the expedition into activism appear more respectable or more defensible than it otherwise would" (p. 9). He provides "admittedly an arbitrary and far too abbreviated list" (p. 6) of supposed theories of constitutional interpretation: "the living constitutionalism of William Brennan, the originalism of Robert Bork, the political process theory of John Hart Ely, the textualism of Hugo Black, the minimalism of Cass Sunstein, the cost-benefit pragmatism of Richard Posner, the active liberty of Stephen Breyer [and] the moral readings of Ronald Dworkin" (p. 5). The remainder of the book mercifully consists of discussion of only four of these: living constitutionalism, originalism, political process theory, and pragmatism, devoting a chapter to and analyzing the "vices" and "virtues" of each.

2. THE SOLUTION: NONPOLITICAL ORIGINALISM

   Judge Wilkinson castigates them all in that their "great casualty ... has been our inalienable right of self-governance" (p. 9). His many so-called theories of interpretation, however, basically reduce to two: originalism and non-originalism, neither of which is really a theory of interpretation. Originalism, the view that the Constitution should, like any writing, be understood to mean what its authors intended it to mean is less a theory of interpretation than a statement of what, in ordinary usage, interpretation means. The other three "theories" Wilkinson discusses, on the other hand, are less theories of interpretation than arguments for deciding constitutional cases on non-interpretatist, i.e., non-originalist, grounds. The real debate, therefore, is not over how to interpret the Constitution but whether the Constitution should be the only basis for constitutional decisionmaking. The function of so-called theories of interpretation is to claim that constitutional decisions based on some alternative to originalism, such as natural law, tradition, or moral principle, are nonetheless somehow connected to the Constitution and some objective source of values and therefore are not simply products of the judges' policy preferences.

   Because the Constitution became authoritative only when ratified by the states, the ratifiers are in effect its true authors, and it should be understood to mean what it was understood to mean, as best we can tell, by them and the people they represented, that is, the original public understanding. There is no other objective source of constitutional meaning, all others amounting, as a practical matter, to a transference of policymaking power from legislators or other government officials to judges.

   Two objections are typically made to this argument by non-originalists. The first is that we may not know the original public understanding as to a contemporary issue, or, most likely, the issue was never considered. Very true, but the purpose of judicial review, at least in theory, is to enforce the Constitution, not authorize judges to substitute their views for the views of legislators. If the Constitution does not clearly prohibit a policy choice, the only conclusion for a judge consistent with representative self-government is that it is not prohibited. The prohibition should be clear because, first, in a democracy, the opinion of legislators should prevail over the opinion of judges in cases of doubt, and second, constitutional restrictions, inherently anti-democratic, should not be favored, new ones should be imposed only for good reasons, and existing ones should not be expanded.

   The second objection to having the Constitution mean only what it was originally understood to mean is that the result is that present-day policy choices are controlled by the "dead hand of the past." (10) The Constitution wisely precludes few policy choices and even fewer that modern legislators might want to make, but as to those it does preclude (e.g., compelling testimony by the defendant in federal criminal trial), (11) the objection is correct. It is an objection, however, not to originalism, but to judicially enforced constitutionalism, and is a good reason, as just stated, not to favor constitutional restrictions.

   Judge Wilkinson does not define the "activism" he protests, but it can most usefully be defined in constitutional law as a court disallowing as unconstitutional a policy choice that the Constitution does not clearly prohibit. (12) Judicially enforced constitutionalism is rule by the dead hand of the past, which should be disfavored; activism is rule by judges, which should, at least, be recognized as such, not obscured by putative theories of constitutional interpretation. If judicial activism is to be prevented or limited and judicial review made consistent with democracy, as Wilkinson urges, it cannot be by pleading with the Justices to ignore supposed constitutional theories of interpretation and exercise self-restraint. It can only be by judicial review being made in practice what it is in theory: the justices refusing to disallow as unconstitutional legislative policy choices that the Constitution doesn't clearly disallow, with the legislative choice being allowed to prevail in cases of doubt.

   This was the insight that Harvard law professor James Bradley Thayer, the leading constitutionalist of his era, famously propounded at the end of the nineteenth century as "the rule of clear mistake." It is not enough, he insisted, that a court "conclude[] that upon a just and true construction the law is unconstitutional.... It can only disregard the Act when those who have the right to make laws have not only made a mistake, but have made a very clear one,--so clear that it is not open to rational question." (13) The issue for courts is "not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it." (14)

   This was the rule Chief Justice John Marshall apparently adopted in justifying judicial review in Marbury v. Madison, (15) when he gave as an example of an unconstitutional law a law that permitted conviction for treason on the testimony of one witness while the Constitution explicitly requires two. (16) It was also the rule often stated by the Court in early cases, (17) though not the rule always applied when, as in Marbury, a law was held unconstitutional. (18) It is certainly not the rule applied by the present Court, which considers itself authorized to remove any issue it chooses from the ordinary political process and assign it to itself for final decision. The rule of clear mistake would result in very few rulings of unconstitutionality, ending the activism and judicial hegemony that Judge Wilkinson protests, but unfortunately, it is not the...