Working Paper No. 12-84:
The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson III's Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance
Date Posted: December 2012
Abstract (below) | Full text (most recent) on SSRN
Judge Wilkinson’s new book attacks four prominent theories of constitutional adjudication on the ground that they have undermined the most important judicial virtue, which is self-restraint. This review demonstrates that the author has failed to show that judicial restraint can operate as a free-standing substitute for an interpretive theory. Judge Wilkinson’s proffered alternative fails the same test that he uses to condemn all of the theories he considers, and his version of judicial restraint proves to be a confused mélange of judicial activism and judicial abdication.