NYU406

Please download to get full document.

View again

of 29
14 views
PDF
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Document Description
\\server05\productn\N\NYU\80-4\NYU406.txt unknown Seq: 1 27-SEP-05 14:37 NEW YORK UNIVERSITY LAW REVIEW VOLUME 80 OCTOBER 2005 NUMBER 4 MADISON LECTURE OUR 18TH CENTURY CONSTITUTION IN THE 21ST CENTURY WORLD THE HONORABLE DIANE P. WOOD* In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynami
Document Share
Documents Related
Document Tags
Document Transcript
  \\server05\productn\N\NYU\80-4\NYU406.txtunknownSeq: 127-SEP-0514:37 NEW YORK UNIVERSITY LAW REVIEW V OLUME 80O CTOBER 2005N UMBER 4 MADISON LECTURE  OUR 18 TH CENTURY CONSTITUTION INTHE 21 ST CENTURY WORLD T HE H ONORABLE D IANE P. W OOD *  In this speech delivered for the annual James Madison Lecture, the HonorableDiane Wood tackles the classic question of whether courts should interpret theUnited States Constitution from an srcinalist or dynamic approach. Judge Woodargues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the srcinal intent of those who wrote theConstitution or take into consideration improper foreign influences. She argues thenecessity of an “unwritten Constitution” since a literalist approach to interpretationwould lead to unworkable or even absurd results in the modern context, and sincerestricting constitutional interpretation to literal readings would mean that the Con- stitution has outlived its usefulness. Judges may “find” unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rightsapplies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings. I NTRODUCTION Fine wines and Stradivarius violins improve with age, taking ongreater richness and depth as the years go by. For many, if not most,other things in today’s frenetic world, value is evanescent. To be old isall too often to be out of date and ready for disposal. In this paper, Iexplore which conception of age better describes our Constitution—now 215 years old. Is this eighteenth century document, along with its *Copyright  2005 by Diane P. Wood, Judge, United States Court of Appeals for theSeventh Circuit. B.A., 1971, University of Texas at Austin; J.D., 1975, University of TexasLaw School. An earlier version of this essay was delivered for the James Madison Lectureon October 18, 2004 at the New York University School of Law.1079  \\server05\productn\N\NYU\80-4\NYU406.txtunknownSeq: 227-SEP-0514:37 1080 NEWYORKUNIVERSITYLAWREVIEW  [Vol.80:1079 eighteenth century Bill of Rights and other seventeen Amendments,still up to the job? How well is it serving the demands we are placingupon it, particularly in the area of individual rights, or what interna-tional scholars call human rights?One’s answer depends critically on which model of constitutionalinterpretation one chooses: the srcinalist approach or the dynamicapproach. While there may be a certain attraction to so-called “plainlanguage” literalism, the Constitution, when viewed in that light, faresbadly as a charter for twenty-first century America. On the otherhand, while the dynamic approach has prevailed over time, for themost part, and allowed the Constitution to adapt to the demands of amodern society, this approach has proven vulnerable to criticism.How serious is that criticism? Has the time now come for us toconsider amending our basic charter to bring it up to date, taking toheart the advice that so many American scholars have so assiduouslygiven over the last decade and a half to countries emerging from theCommunist shadow? One who advocates a narrow, text-basedapproach to the Constitution would be compelled to answer that theConstitution has reached the end of its rope, for reasons I shallexplain in this paper. If, on the other hand, one is willing to give thebroad provisions in the Constitution and its Amendments a generousreading, thereby validating the many adaptations that the Court andcountry have endorsed over the years, our old Constitution has stoodthe test of time admirably. The basic charter that suited a small, rela-tively powerless, rural economy with a population of 3.9 million nowserves a global superpower of nearly three hundred million citizens, 1 where economically the relevant stage is the entire world, wherenational and global communications are instantaneous, and where it iseasier to get from New York to Honolulu than it once was to get fromNew York to Philadelphia.But not all have welcomed this achievement. The doctrines theSupreme Court has used to allow the Constitution to grow with thetimes have been hotly contested. Many people today questionwhether the Court has strayed too far from the srcinal intent of theFramers. They also assert that it is not proper to look to foreign expe-rience when we consider which human rights have constitutionalstatus. While critics are right to note that some of the most importantconstitutional developments rest on what some have called the 1 The population of the United States is now 294,379,807 according to the websitemaintained by the U.S. Census Bureau. See U.S. Census Bureau, Population Clocks, http://www.census.gov (last visited September 27, 2004).  \\server05\productn\N\NYU\80-4\NYU406.txtunknownSeq: 327-SEP-0514:37 October2005] OUR 18 TH  CENTURY CONSTITUTION  1081 “unwritten Constitution,” 2 this does not mean that we should rejectthem. The price of doing so would be far too high both for the struc-tural provisions of the Constitution and our commitment—bothdomestically and internationally—to the protection of human rights.Rejection would be tantamount to an unnecessary conclusion that theConstitution has indeed outlived its usefulness. It is time, therefore,to end the long-standing and unproductive methodological debateover “srcinalism” versus “dynamism” or “evolution” and focusinstead on how, as a substantive matter, we should interpret the Con-stitution in the twenty-first century, and what it has to say on ques-tions unimaginable to our eighteenth-century Framers.IW HAT D O W E E XPECT OF THE C ONSTITUTION ?In order to set the stage, let me begin by reviewing what werightly expect the Constitution to do, and how well it manages to meetthose expectations. It is well understood that the United States Con-stitution, like most constitutions, contains both provisions that allo-cate powers among the institutions of government and provisions thatprotect individual rights. A quick overview of both areas is enough toillustrate how far we have evolved in each one from the literal text of the Constitution and how much we depend upon the elaboration thathas largely come from the Supreme Court.  A.Structural Rules Because the srcinal Constitution was primarily concerned withthe structure of the new federal government, and because its firstthree articles are almost exclusively about structure, let me beginthere. We are all familiar with the basic outline. Despite the absenceof an article or clause announcing that the new United States wouldadopt a modified structure of separation of powers, where a system of checks and balances would operate, it is plain from Articles I, II, andIII of the Constitution that this is exactly what was being done. More-over, as everyone knows, the Constitution spells out numerous waysin which each branch was to interact with its fellows. To name just afew examples, the Vice President presides over the Senate; 3 theSenate tries all impeachments; 4 before a bill becomes law, the Presi-dent must sign it, or a supermajority of Congress must pass it over his 2 See generally Suzanna Sherry, The Founders’ Unwritten Constitution , 54 U. C HI . L.R EV . 1127 (1987). 3 U.S. C ONST . art. I, §3, cl. 4. 4 U.S. C ONST . art. I, §3, cl. 6.  \\server05\productn\N\NYU\80-4\NYU406.txtunknownSeq: 427-SEP-0514:37 1082 NEWYORKUNIVERSITYLAWREVIEW  [Vol.80:1079 veto; 5 the President’s appointment and treaty powers are limited bythe need to obtain the Senate’s advice and consent; 6 and the appellate jurisdiction of the Supreme Court is subject to “such Exceptions, and. . . Regulations as the Congress shall make.” 7 The last of these hasbeen in the news recently in connection with legislation passed by theHouse of Representatives that would strip the Supreme Court of juris-diction to hear cases challenging the phrase “under God” in thePledge of Allegiance. 8 There are additional structural rules found in the Constitutionand its Amendments. Congress’s power to tax was the subject of theSixteenth Amendment; 9 the Seventeenth Amendment changed theway in which Senators are chosen; 10 and the Twenty-Seventh Amend-ment governs laws affecting the compensation of members of Con-gress. 11 The text of the Constitution also contains rules about federalelections in the Twelfth Amendment, 12 the Fourteenth Amendment, 13 the Twentieth Amendment (which sets the dates from which the termsof the President and the Congress run), 14 the Twenty-Second Amend-ment (which limits any one person to two terms as President), 15 andthe Twenty-Fifth Amendment (which outlines what happens upon thedisability or death of the President). 16 Finally, the Constitution has a few things to say about the federalstructure of the nation, although not as much as one might think.Principal among these textual provisions is Article IV of the srcinalConstitution, which contains such important guarantees as the FullFaith and Credit Clause, 17 the Privileges and Immunities Clause, 18 theExtradition Clause, 19 and the rules for admitting new states and gov-erning territories. 20 Article VI contains the Supremacy Clause, whichaddresses the place of federal law in the hierarchy of federal and state 5 U.S. C ONST . art. I, §7, cl. 2. 6 U.S. C ONST . art. II, §2, cl. 2. 7 U.S. C ONST . art. III, §2, cl. 2. 8 See H.R. 2028, 108th Cong. (2004). For one view of the reason why such a bill mightbe passed, see Newt Gingrich, Runaway Courts , W ASH . T IMES , Sept. 23, 2004, at A19. 9 U.S. C ONST . amend. XVI. 10 U.S. C ONST . amend. XVII. 11 U.S. C ONST . amend. XXVII. 12 U.S. C ONST . amend. XII. 13 U.S. C ONST . amend. XIV. 14 U.S. C ONST . amend. XX. 15 U.S. C ONST . amend. XXII. 16 U.S. C ONST . amend. XXV. 17 U.S. C ONST . art. IV, §1. 18 U.S. C ONST . art. IV, §2, cl. 1. 19 U.S. C ONST . art. IV, §2, cl. 2. 20 U.S. C ONST . art. IV, §3.
Similar documents
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks