Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Rights to Self-Governance

On September 6, 2012, J. Harvie Wilkinson III delivered a Banner Lecture "entitled Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Rights to Self-Governance." American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights, firearms regulations, and health care reform are increasingly the domain of judges. What sparked this development? Judge J. Harvie Wilkinson III argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint, which has given way to competing schools of liberal and conservative activism—Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Wilkinson calls for a plainer, self-disciplined commitment to judicial restraint and democratic governance, a course that may be impossible as long as the cosmic constitutionalists continue to dominate legal thought. J. Harvie Wilkinson III is a judge on the U.S. Court of Appeals for the Fourth Circuit. (Introduction by Paul Levengood and Todd Culbertson) The content and opinions expressed in these presentations are solely those of the speaker and not necessarily of the Virginia Museum of History & Culture.