The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson III's Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance

Engage: The Journal of the Federalist Society Practice Groups, Vol. 14, No. 2, pp. 100-104, July 2013

George Mason Law & Economics Research Paper No. 12-84

6 Pages Posted: 12 Dec 2012 Last revised: 6 Nov 2013

Nelson Lund

George Mason University School of Law

Date Written: December 12, 2012

Abstract

A distinguished federal appellate judge, J. Harvie Wilkinson III, has an exasperated message for constitutional theorists: A plague on all your houses! This short review demonstrates that Judge Wilkinson’s proposed alternative to all constitutional theories, which he calls “judicial restraint,” is actually a confused mélange of judicial activism and judicial abdication. The review concludes by suggesting a different form of judicial restraint, and one that is consistent with the constitutional theory of originalism.

Keywords: Alden, Antonin Scalia, Blaisdell, commerce, constitutionalism, decency, equality, Earl Warren, evolving standards, framers, human dignity, John Hart Ely, justice, living, originalism, political process, pragmatism, Richard Posner, Robert Bork, society, textualist, Thayer, Thornton, William Brennan

Suggested Citation

Lund, Nelson, The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson III's Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance (December 12, 2012). Engage: The Journal of the Federalist Society Practice Groups, Vol. 14, No. 2, pp. 100-104, July 2013; George Mason Law & Economics Research Paper No. 12-84. Available at SSRN: https://ssrn.com/abstract=2188553

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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