In courts and law schools across America, the most intense legal battles are fought over theories of constitutional interpretation. From the originalists on the right to the living constitutionalists on the left, each of the warring camps claims that it has discovered the true faith and accuses its opponents of hypocrisy. Now comes Judge J. Harvie Wilkinson III with a bracingly clear and bipartisan message: All the theories are bunk! According to Wilkinson’s “Cosmic Constitutional Theory,” “the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.” As a result of their cosmic theorizing, Wilkinson concludes, liberal and conservative judges and justices are too quick to second-guess the choices of legislatures, and the casualty is “our inalienable right of self-governance.”

Wilkinson, who was appointed to the United States Court of Appeals for the Fourth Circuit by Ronald Reagan, is one of the most respected appellate judges in the country; he was on President George W. Bush’s shortlist for the Supreme Court. It’s not surprising that he indicts liberal justices like William Brennan for embracing a theory of living constitutionalism that “led the courts deep into the thickets of abortion, capital punishment and habeas corpus” by encouraging them to update the Constitution in light of contemporary values. While praising the living constitutionalists for “giving the elected branches leeway to craft fruitfully modern definitions of terms like ‘equality’ and ‘commerce,’” Wilkinson sharply criticizes Roe v. Wade, which he says “flunked simultaneously the three most basic interpretive tests” — it was unsupported by constitutional text, history or structure.

More surprisingly, however, Wilkinson is just as critical of the jurisprudence of original understanding, embraced by Justices Antonin Scalia and Clarence Thomas. Calling originalism a form of “activism masquerading as restraint,” he says that the methodology “fails to constrain judicial choices” when the historical evidence is ambiguous, which it is in every hard case.

Wilkinson is withering about the Supreme Court’s recent decisions striking down gun control laws under the Second Amendment, which he compares to Roe v. Wade in their tendency to impose “judicial value judgments based on thin and shaky grounds.” He warns that a Supreme Court decision overturning health care reform would be just as activist as one legalizing gay marriage, although he approves of gay marriage, but not President Obama’s health care reform (“seems misconceived in many ways”), on policy grounds. And he has no patience for Bush v. Gore, which he calls “no friend of self-governance.”