Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, September 5, 2012

Review of Judge Wilkinson's Book

By Marc DeGirolami

I have a review of Judge J. Harvie Wilkinson III's book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, over at The New Republic.  I have the rough sense that my take is generally more positive than what I've seen from other legal academics and commentators, but perhaps you will let me know.  

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/09/review-of-judge-wilkinsons-book.html

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Great job, Mark, as always. For what it's worth, I'm fairly sympathetic to Judge Wilkinson's (and your?) take, but I think he overstates his critique of originalism. Sure, there is the potential for abuse connected with the method, as with any method, but I've found his criticisms of (if I remember correctly) Heller and Citizens United (both of which seem quite clearly correct to me, and not for any "cosmic" reasons) overdone. The challenge, as I see it, is not in "being restrained", full stop, but in distinguishing the situations (and there *are*, almost everyone admits, such situations) when judicial invalidation is required by the judge's oath from those when it is not. No small challenge, right? =-) After all the "right to self-governance", while "inalienable", is not absolute. We've ruled out -- self-paternalism, and all that -- certain outcomes, and I think (at *some* point) courts may and must enforce the constraints that we put on ourselves.