Constitutional Law

4th Circuit's Wilkinson Hits Liberals and Conservatives for Competing Theories of Judicial Activism

Image courtesy of Oxford University

A federal appeals judge is taking both liberals and conservatives to task for pushing constitutional theories that weaken Congress and the nation’s system of self-governance.

Judge J. Harvie Wilkinson III outlines his views in a New York Times op-ed and in a new book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance. The New York Times has a review.

Wilkinson, a judge on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, disdains originalism in his book as “activism masquerading as restraint” and rejects living constitutionalism for producing opinions such as Roe v. Wade.

Conservatives arguing against the Obama administration’s health care law say the health insurance mandate exceeds Congress’ power to regulate interstate commerce, Wilkinson writes for the Times. Liberals, on the other hand, seek rights to reproductive choice and same-sex marriage through “judicial expansion of unenumerated personal rights.” Both sides “have the American Constitution in the cross hairs” by seeking to overturn laws and limit majority rule, he says in the op-ed.

The Times review by George Washington University law professor Jeffrey Rosen says the book is “an invaluable reminder of the lost virtues of bipartisan judicial restraint.” As Rosen sees it, there is little possibility that the United States will return to the tradition.

“Now that the left and the right rely on the Supreme Court to reverse their defeats in the political arena, presidents of both parties are unlikely to pick nominees who believe the court should strike down very few laws,” Rosen says.

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