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12/19/2012

Nelson Lund on Judge Wilkinson's Judicial Restraint (Updated)
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson's Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance on SSRN.  Here is the abstract:

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.

Two thoughts:

(1) While I agree that judicial restraint "can[not] operate as a free-standing substitute for an interpretive theory," I don't understand why that should be a fatal objection.  Judge Wilkinson doesn't put it exactly this way, but why couldn't a theory of judicial restraint say that judges should not intervene against the political branches unless there is a consensus of all major theories of interpretation that the challenged act is unconstitutional? 

(2) Judge Wilkinson achieved a bit of good press by prominently opposing the Heller decision and the challenge to the Affordable Care Act on judicial restraint grounds.  Is he going to take an equally prominent stand against judicial recognition of same-sex marriage?  I would think it is rather difficult to explain how his (or any) version of judicial restraint could support judicial intervention on that issue.

RELATED:  From a little while ago, here is a debate between Judge Wilkinson and Roger Pilon of the Cato Institute.

UPDATE: Nelson Lund writes:

A couple of comments on your comments:

1.  Judge Wilkinson could not say that that "judges should not intervene against the political branches unless there is a consensus of all major theories of interpretation that the challenged act is unconstitutional." He endorses several interventions against the political branches as to which he himself indicates there is not a consensus of all major theories of interpretation. Whatever the merit of your suggestion, Judge Wilkinson could not adopt it with changing his considered views about a number of decisions.

2.  The book does express very considerable skepticism about the propriety of declaring same-sex marriage a constitutional right.