Is Judicial Restraint the Proper Response to Judicial Activism?

June 22, 2013

Featuring J. Harvie Wilkinson III, Judge, U.S. Court of Appeals for the Fourth Circuit; and Roger Pilon, Vice President for Legal Affairs, Cato Institute; moderated by Walter Olson, Senior Fellow, Cato Institute Center for Constitutional Studies.

Does the climate of opinion among legal commentators improperly encourage judges to be “activist”? Or should judges be forthrightly active and vigorous about fulfilling their role in the Constitutional scheme by striking down unconstitutional measures, even as they take care not to read rights into the document that aren’t there?

Few voices have spoken on behalf of judicial restraint as eloquently as the distinguished Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, who served as Chief Judge of that circuit from 1996 to 2003 and was originally appointed in 1984 by President Ronald Reagan. In his new book Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, Judge Wilkinson strongly criticizes the liberal “living Constitution” movement, but also takes issue with many libertarians and other legal theorists who have successfully urged the Supreme Court to apply closer constitutional scrutiny to government action in areas such as eminent domain and gun control. Responding to Judge Wilkinson, and defending a tradition of vigorous judicial protection of constitutional liberty, will be Roger Pilon, founder and director of Cato’s Center for Constitutional Studies.

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