Marc O. DeGirolami on the Fall of Judicial Restraint

September 05, 2012

In the Media

Astral Appetites
by Marc O. DeGirolami
TNR.com
September 5, 2012

Book Review: Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance by J. Harvie Wilkinson, III (Oxford University Press)

Excerpt:

What is killing judicial restraint? In J. Harvie Wilkinson’s view, constitutional theory is doing the job. Wilkinson is a longtime judge on the U.S. Court of Appeals for the Fourth Circuit, a prolific writer, and a well-regarded and moderate conservative. As he writes in his new book, the fall of judicial restraint (and the subsequent transfer of considerable power from the people to the judiciary) came with the mid-twentieth century rise of theories of constitutional interpretation. The presumption shifted: judges should no longer defer to legislative enactments; they should use constitutional theory to resolve constitutional conflict.