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Wilkinson on the struggle for restraint by judges, particularly in constitutional cases

March 29, 2012 by Kevin C. Walsh

From J. Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance:

Most of us are wired in the belief that, of course, we are right. Judges in particular become vested in their own views with time. No electorate forces us to make adjustments. We are the kings and queens of our realms. All rise as we walk into the courtroom; no one is to interrupt the Honorable Judges as we hold forth in our robes from an elevated perch. This accumulation of tokens of our majesty makes it more difficult to practice restraint and more imperative to have internal checks in place. Especially in constitutional cases, the first question should be not “What do I decide?” but “May I in fact decide?” And in all cases, we must ask: might not the views of others be equal or superior to our own? These are questions that do not arise naturally or produce honest answers frequently. Most of us pose these questions only fitfully and episodically. All of us know we should do so all the time. But the struggle for restraint remains essentially a struggle against nature, and the stakes for self-governance have seldom been so high.

 

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Posted in Law | Tagged constitutional theory, cosmic, judicial restraint, restraint, Wilkinson |

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