The constitutional right to be left alone

by George F. Will

Washington Post
April 19, 2012

Judge J. Harvie Wilkinson III, a Reagan appointee to the U.S. Court of Appeals for the 4th Circuit, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” “originalism” and “constitutional pragmatism.” Each, he says, abets judicial hubris, leading to judicial “activism.”

Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.

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