A Nation Mesmerized and Seduced

Judge J. Harvie Wilkinson III '72 on “Cosmic Constitutional Theory”

United States Fourth Circuit Judge J. Harvie Wilkinson III ’72 is a long-celebrated member of the Law School community. After graduation, Judge Wilkinson clerked for Justice Lewis F. Powell Jr. on the United States Supreme Court, returned to the Law School as an associate professor for five years, and then served in the Department of Justice and as editor of Norfolk’s newspaper, The Virginian-Pilot. He briefly rejoined the Law School faculty before President Reagan nominated him in January 1984 for the Fourth Circuit. The Senate confirmed him that August.

Judge Wilkinson has written five books about his experiences in politics and the judiciary. His latest, Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance, explores the animating principles behind various constitutional theories – living constitutionalism, originalism, political process theory, and pragmatism -- finding merit in each but a missing ingredient in all of them: restraint.

We sat with Judge Wilkinson in his chambers at the federal courthouse in Charlottesville and asked about his reasons for writing his book and more. The interview has been edited for length and clarity.

JHW: My concern is that these theories have mesmerized everybody and have become so terribly seductive that we have almost allowed the theories to serve as a constitution of their own. I think it’s brought us away from certain fundamental aspects of the judicial role, the most important of which is judicial restraint. The different theories of the Constitution have left judges free to roam at will with their own predilections. That’s a very unsettling state of affairs because I don’t believe the Constitution was intended that way. I think that the basic approach to judicial rulings has to be a certain modesty and restraint on the part of the judge.

Learned Hand said the spirit of liberty is the spirit that is not too sure it is right. You need to appreciate that wisdom begins with an appreciation of the limits of knowledge. My problem is that these theories have been so beguiling and propounded by such legal luminaries that we’ve lost sight of the basic value of restraint. People have deployed these theories to reach results that are congenial on a policy level but really don’t have much to do with the basic role the judiciary was intended to play.

A judge ought to look at his role like playing a part in a symphony. When you’re in a symphony, the violins have to understand what the violas are doing, and the violas have to understand what the cellists are doing, and the strings need to understand that they’re playing in coordination with the woodwinds and the brass. It’s the same thing with judges. We are a part of a larger effort playing in concert, if you will, with Congress, with administrative agencies, with state courts, with the private sector, and with the executive branch of government. For our system of government to work, one part of that symphony, the courts, has to respect the role of the others. These theories aren’t teaching us that very much. They’re just allowing us all sorts of flexibility and latitude to do what we want to do, and that’s wrong.

Q: On a practical level, do you think judges tend to make decisions using experience and common sense and then subconsciously reverse engineer them to fit their theoretical approach?

JHW: Well, there’s such a large element of discretion in the theories, and that’s what’s so insidious. . . . These theories leave everything up to judicial discretion. For example, living constitutionalism leaves it up to the judge to define the law in terms of what the judge conceives to be conditions of modern enlightenment. Living constitutionalism encourages the judge to believe that we are on the vanguard of what society ought to be thinking, but the rights that the living constitutionalists create often find no grounding in constitutional text or theory or structure. It’s just all up to them.

Originalism started as an answer to this. Then it proved to be little better than the theory it sought to displace. Look at the large element of discretion in originalism. You can just pick and choose what it is you like and call it original intent. The Heller decision went across the ocean to find some of it in the Stuart kings of Britain, and then they went a hundred years after the enactment of the Second Amendment to find other evidence. And sometimes the lack of that evidence allows the judge equal discretion to say, well, we don’t know for sure so let’s do this.

Respecting the role of others in our system, the Constitution imparts two forms of liberty. Individual liberty is protected by our precious Bill of Rights, but democratic liberty is protected by the Constitution’s commitment to self-governance. Judges must respect both.

Anyway, I was dismayed at the trend of things and where all these theories are leaving us. They’re very captivating to people because they’re so bright and they’re so creative, but we’re being mesmerized. We’re being sold a bill of goods. It’s led to misadventures of all sorts. Roe is one. Heller is another.

Q: Do you use any parts of these theories in your decision-making, not purposefully, but in how you deliberate?

JHW: When I approach a case the first question I ask is not what do I decide, but whether I am the one to decide it. That’s fundamental. My overall framework of judging is fairly simple. It’s no big theory. These thoughts have been voiced many times before.

We sit there and we respect the text and history and structure of the Constitution. We respect the role of the Congress and the executive branch. We respect the role of the states. We respect the expertise in appropriate cases of administrative agencies. We respect the role of trial judges in findings of fact. We respect the role of precedent. That’s no big theory, but if you follow it, it leads you to a certain respect for other people. You don’t have all the answers. You start to think maybe some other people have some good answers, too, and then you start to really listen. I think that’s very helpful.

Q: Critics say you have to have a theory of constitutional interpretation….

JHW: They say if you want to follow the road of judicial restraint, is there anything left for you to do? Well, I’ve been telling you there’s a whole lot left for us to do. We’re not in any danger of running out of work. Interpreting the law is itself a monumental task. Look at these very complicated statutes and at the Code of Federal Regulations that probably stretches around the earth several times and maybe even to the moon.

It’s no theory, but the Constitution has a role for judges to play. It’s very explicit and embodied in a set of “do nots.” It waves a finger at government and it says: you do not do certain things. You do not infringe the free exercise of religion. You do not establish religion. You do not impinge and suffocate free speech. You do not undertake unreasonable searches and seizures. You do not compel someone to testify against themselves. You do not discriminate on the basis of race. You do not impinge upon free expression. Judges have a big role in enforcing constitutional “do nots.”

But when you go from enforcing enumerated rights to drawing limits on the enumerated powers of a coordinate branch, you’re taking a big step. Now, the courts have tried for more than a century to find some workable limits to the commerce power. They’ve tried this idea and they’ve tried that idea. They’ve tried the difference between commerce and manufacturing and the difference between direct and indirect effects on commerce, and then finally, after Lopez, they settled on a three-part test, the most significant element of which is, does the activity in the aggregate have a substantial effect upon commerce. Well, that’s as elastic as it can possibly be. What has and has not, or what is or is not, a substantial effect is a totally subjective test and totally in the hands of judges. It’s in the eye of the beholder. That’s where judicial restraint really ought to kick in. You would think after more than a century of misadventures with this kind of thing that we would have learned, but apparently not.

Q: Do you believe the Commerce Power has been used consistently with the intention of the Framers?

JHW: Yes, I think it’s broadly been used by Congress to regulate interstate commerce in a way that draws this nation together as one commercial unit and recognizes that commerce is something that increasingly cuts across state lines. Congress has made numerous enactments pursuant to this enumerated power, and its efforts in this regard are subject to a heavy presumption of respect unless they’re trampling on one of the constitutional “do nots.”

Q: One of the things you said about living constitutionalism is that it gets to the point where it’s now so ingrained in society that it would be activist to roll it back.

JHW: I hear you. And I think there you have to ask yourself two questions. Number one: a reliance interest builds up in judicial decisions over time, and courts do wish to respect precedent. You don’t want the law to be up for grabs every time a new justice joins the Supreme Court. I think we’re all practical enough to say we can’t just take every living constitutionalist precedent and just throw it overboard. That is not the way to proceed.

But on the other hand, I don’t want this to become a one-way ratchet where living constitutionalists come up with a series of decisions not legally grounded and say, “Aha, we’ve got you. It’s now precedent and you have to respect it.” It’s always a one-way ratchet and we go more and more down the road to amplifying judicial power. And so we have this Scylla and Charybdis, if you will, of being practical and respectful of precedent on the one hand, while on the other you have the history of law as a one-way march aggrandizing judicial power.

So how do we strike the balance? Well, the judiciary moves in a bit of an arc. We don’t make abrupt U-turns. The earlier precedents whose legal grounding is suspect should be tempered and changed and limited, but not abruptly. It’s an arc. It’s not a quick U-turn.

Q: You predicted accurately that the Affordable Care Act should be upheld, however flawed it may be. The courts would have to give a very good reason to overturn such an act of Congress. Were you surprised that Chief Justice Roberts used the taxing power, and not the Commerce Clause, to uphold the individual mandate?

JHW: Well, I wouldn’t want to get into it too much. I respect the result that the Court reached in that case. Personally, were I in Congress, I would never have voted for it, but that’s a totally different question from the question before a judge. I was never able to convince myself that the ACA was unconstitutional. I think it’s a deeply flawed enactment but also a constitutional enactment. Legislation can be profoundly wrong in the opinion of the judge and yet be thoroughly constitutional. To the degree that the ACA is going to be overturned or modified or adjusted, it’s going to have to be through a series of compromises struck by the political process.

I’ve said this many times. I’ve never been able to convince myself that it was unconstitutional given the sizeable role that health care plays in the national economy, and the fact that large elements of it are interstate. I have never been able to persuade myself that Congress was disabled from addressing this subject.

Q: Is it appropriate for an appellate judge to disagree about a particular constitutional provision and find ways to weaken it?

JHW: You have to give a lot of respect to precedent, but it’s not absolute. There’s got to be some room for play in the joints as far as precedent is concerned. The court has a different standard with respect to statutory precedent and to constitutional precedent. The theory goes that because constitutional precedent was created by judges, judges should feel freer to modify it, whereas statutory precedent ought to be left pretty much to Congress to change. That’s an interesting general observation, but I’m not sure how much it helps.

Q: Is judicial activism the opposite of judicial restraint? At the appellate level in our common law system, sometimes judges have to make law to fill in blanks left by the legislature. Is that being an “activist judge”?

JHW: A lot of living constitutionalists have tried to compare their system to the old common law judge. They say they’re not that different from Benjamin Cardozo, who had to recognize the adaptive qualities of law. They say the great characteristics of the common law system are that it’s adaptive and incremental and works on a case by case basis, and that that’s all they’re doing as living constitutionalists. Well, that’s not all they’re doing.

Common law rulings were handed down by state judges and applied in a particular state. A legislature could overturn them. But these constitutional rulings often just throw federalism overboard. They don’t apply to just one state. They’re saying that it is the final word for the entire country and no legislative authority can overrule them. So, in both the scope and the finality of it, the living constitutionalists are operating totally different from our great common law tradition. For them to try to co-opt that tradition and say that they’re the descendants of the great common law judges is just wrong.

Q: What about those areas where there is a legislative vacuum, either on purpose or by accident, which an appellate judge has to fill?

JHW: We fill in vacuums in the sense that statutes are ambiguous and we have to interpret ambiguity.

Q: Is that “making law”?

JHW: Well, no, because I think Justice Brandeis said in Erie that there’s no general federal common law, so I wouldn’t call it “making law.” I would say that what you do when you interpret a statute or a ruling is to ground your decision in law. The answer may not be 100% clear, but that doesn’t mean you’re creating law or making law. What you’re always doing is relying on the textual grounding, the statutory grounding, the historical grounding, and what’s the structure in terms of separation of powers or between the federal government and the states. But you’re trying to ground that decision in solid legal principles, the more specific of which probably trump the more general.

Q: Brown was perhaps the iconic case of law getting out of the way of society, or bad law but good policy. Would you say Lochner was the opposite -- good law but bad policy?

JHW: Lochner was misguided for many reasons. It was not grounded in contract law. It was proposed as a substantive due process theory, and a substantive right was imported into a procedural clause. The due process clause has always suggested procedure to me and to most first-year law students until they get turned around.

Now, Lochner is a perfect example of living constitutionalism. It is taking the due process clause and putting in these substantive rights which the employer wanted. It was a very congenial ruling for business. They have a right to contract, which would mean, if you carry it far enough, that there could be no minimum wage and no interference with business vis-a-vis their workforce. So they ginned up this theory, essentially. It wasn’t as full blown as it later became, but it was a progenitor of living constitutionalism. They had this pro-business agenda, which they put in using substantive due process.

Oddly enough, the liberal justices on the court who were so eager to repeal what I agree was the unfortunate legacy of Lochner in the 1930s and the New Deal court – this is one of the great ironies of American legal history -- proceeded to do the very same thing under the due process clause that Lochner had done. They read into it a set of substantive rights that coincided with their own particular modern day agenda, so they’re all in the same camp together. You can say there’s a difference between personal and economic rights, but most of these living constitutionalist rights historically were the responsibility of state legislatures and resided at the core of the state police power.

Q: Have you ever had a debate with Judge Posner on the record?

JHW: We have. We’ve certainly exchanged barbs in our different work and we’ve had some long-distance correspondence which did not manifest complete agreement, but I have to say this: I like Dick Posner enormously. He’s such a nice person and the thing that’s engaging about Dick is he’s always willing to take you on about anything; he’s always ready to join the issue. That’s a lot of fun for me. He’s been a great credit to the federal courts.

Q: I suppose the part that probably bothers you the most about his arguments is how he researches outside the trial record to put things in context.

JHW: Yes, what he calls pragmatism. It’s way too loose. The law has a certain formality at its core. To some extent, it’s a high church undertaking and it imposes a certain constraint. This whole idea that we’re going to consult another discipline and look at consequences of what we do and weigh cost and benefits just lets you loose on a sea of unfettered discretion. I always thought legislatures had a certain role in gauging what the effect of a policy would be. Dick is just letting us all out on the high seas, and I guess we can just sail our little craft where we will. He’s done the same thing that the originalists have done and the living constitutionalists have done. They’ve just imparted unfettered discretion to the courts.

All the theories, and even the anti-theories, are like Dick’s pragmatism. They’ve all failed. They’ve gone too big. They’ve succumbed to grandiosity. They should never have done that.

Q: Are you the same judge today as you were when you first went on the bench?

JHW: Oh, gosh. I hope there’s been some real consistency to my record, but I hope I haven’t been so wooden that I have closed off my mind.

My approach to it is basically the same. I’ve tried to remember just how much every case matters to the parties before the court. It may be one of hundreds that we hear, but to the people affected, that one case is everything. Just like when you walk into a doctor’s office, you want the physician attentive to you, not the patient before or the patient after. Well, people have the right to expect that same attention from a judge.

I’ve just tried to respect other people and other organs of government, but when a core constitutional liberty protected by our Bill of Rights and the 14th Amendment is at stake, I’ve moved hard to support that. I take that very seriously because that’s really the heart of who we are. Our free speech; our free exercise of religion; the fact that the state doesn’t discriminate on the basis of race, color or creed; the fact that we do have a degree of privacy in our personal effects; the fact that we do have certain rights at trial, to counsel and cross-examination, and not to have confessions coerced from us. Those rights I take very very seriously and that’s what I regard as a core of my charge because that’s really a great part of American liberty.

Q: You’re the judicial equivalent of Cincinnatus walking away from all the power that we want these theories to give you….

JHW: I ask you, isn’t one of the really worthwhile traits of public service, at all levels and in all branches, a sense of restraint? A restraint in appetite, it seems to me, translates into character. Isn’t that one of the great characteristics of the Roman Republic? What you worry about is becoming dulled by the spirit of empire and the blandishments of a more modern, more prosperous society, but perhaps restraint on the part of courts can serve as something of a small example. Maybe I’m naïve here, but restraint on the part of Congress in terms of its spending habits and of its own deportment could do the same. Restraint, I think, adds to the character of the country and I’m simply not embarrassed to be advocating it.

Q: Thank you.