Strengthening Constitutional Self-Government

No Left Turns

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Cosmic Constitutional Theory

In today's WaPo, George Will reviews Judge J. Harvie Wilkinson III's "Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance." Will interprets Wilkinson's self-governance as a prerogative of majorities, preferring instead self-governance based on the liberties of individuals.

Ripe for thoughtful comment, I'd say.
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Wilkinson has a book, it sounds textualist. Relatively pro-Scalia, and against everyone else. Something fairly close to how Scalia understands himself, or how Wilkinson understands his own jurisprudence.

All judges are textualist to some extent. But the extreme Wilkinson-Scalia approach is a mainstream position.

I would also consider Judge Alice M Batchelder of the 6th Circuit to more or less be in this mold.

Her husband William G. Batchelder is Ohio Speaker of the House.

George Will has his own audience, and it sounds like he has been reading No Left Turns with the whole Declaration of Independence Jazz.

But I think judges like Batchelder, Wilkinson and Scalia necessarily have to get into "self-governance as a prerogative of majorities" basically it comes down to the fact that passing a bill is not easy. The more you know about the differences in political philosophy and interests that went into making the bill, the less you want to give a lot of weight to extrensic evidence like legistlative statements/original intent.

When you step outside the text, you basically give a party something that his side was not able negotiate into the body of the text. The constitution has its own preamble. If you want the Declaration of Independence, get a time machine and go back and convince the already fractured constitutional convention to include it. Possible Result: Constitution does not get passed.

It is really the same with any legistlation or contract. Which is why strict textualists stick to the four corners and let parties or legistlatures hang themselves.

Strictly speaking the first living constitutionalists departed from textualism to take into account changes in social conditions and imballances in bargaining power/sophisticated parties.

But original textualism is more or less encapsulated by: "If my fellow citizens want to go to Hell I will help them. It’s my job.”

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