Piss Off Orrin Hatch And Nominate Diane Wood To The Supreme Court

At the risk of turning off regular readers, the pending resignation of Justice John Paul Stevens cries out for a 2000-word essay on why Diane Wood should be Obama’s nomination to replace the “liberal” voice on the Court.

Okay.  I won’t write 2000 words, but I do find Judge Wood very interesting, particularly her approach to judging.  Stay with me, if you want to have a little ammo to combat the onslaught of hysteria and ignorance that will be forthcoming in the philosophical battle over who will be the next justice on our highest court.

In a lecture she gave in 2005 titled, “Our 18th Century Constitution in the 21st Century World,”  Judge Wood, who sits on the Seventh Circuit Court of Appeals, shows why she would be a match for any conservative currently sitting on the high court.

She begins her talk with this:

Fine wines and Stradivarius violins improve with age, taking on greater richness and depth as the years go by.  For many, if not most, other things in today’s frenetic world, value is evanescent.  

I like her already.

But, more important, she has a philosophically tenable counter to the originalism espoused by most conservatives, not only those on the Supreme Court, but those Constitutional experts like Rush Limbaugh and Sean Hannity and, of course, Fox “News” scholar, Glenn Beck.*

Wood contrasts the “originalist approach” (think: Antonin Scalia and a hopped-up Limbaugh) with the “dynamic approach” (think: nearly everyone else) and she clearly sympathizes with the dynamicists:

If…one is willing to give the broad provisions in the Constitution and its Amendments a generous reading, thereby validating the many adaptations that the Court and country have endorsed over the years, our old Constitution has stood the test of time admirably.  

Indeed, it has:

The basic charter that suited a small, relatively powerless, rural economy with a population of 3.9 million now serves a global superpower of nearly three hundred million citizens, where economically the relevant stage is the entire world, where national and global communications are instantaneous, and where it is easier to get from New York to Honolulu than it once was to get from New York to Philadelphia.

Not content, though, with the old categories, Wood wants to move beyond them:

It is time..to end the long-standing and unproductive methodological debate over “originalism” versus “dynamism” or “evolution” and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth-century Framers.

Now, were I to go on and cut and paste from the rest of her lecture, things like,

The literal Constitution, for which some have argued, would be a woefully inadequate document for the American people today…


The Federalist Papers and other documents from the Founding period make it abundantly clear that the Framers knew that they were creating a set of constitutional standards, not prescribing rigid constitutional rules…

this little posting would go well beyond 2000 words and would go unread by the average net-surfer. But suffice it to say that Wood’s reasoning appears to be quite sound, “liberal” though it will certainly seem to anyone who thinks the Joplin Globe is a “liberal” newspaper.

A few more highlights deserve a mention here.  Wood discusses “impoundment” (you’ll have to look it up) and the controversial War Powers Resolution (or Act, as I was taught in school) which seeks, albeit with questionable constitutionality, to limit the powers of any president to prosecute wars like, say, Vietnam.

What I find interesting, in terms of the current cries to “follow the Constitution,” coming from Tea Party law professors (with their spelling-challenged signage), is this fact, brought out by Judge Wood:

War powers bring into even sharper focus the difference between today’s Constitution and the text adopted in 1789.  Article I, Section 8, Clause 11 confers on the Congress the power “to declare War.” One could be forgiven for thinking that this short phrase must mean that the country cannot enter into hostilities without first obtaining a formal declaration from Congress, and that this declaration will specify with what country or group of countries the United States is at war. Neither of those suppositions is true in the post-Vietnam War period…

Neither is true, she says, because

1) the War Powers Resolution “specifically recognized the power of the President to commit U.S. troops to hostile action without a formal declaration of war,” and,

2) ” the idea of “war” itself has become hopelessly fuzzy. In an era where one can have “wars” on phenomena like terrorism or organized crime–in which there is no enemy with whom to negotiate, no power capable of surrender, and thus no way to know when the “war” is over–the text of the Constitution is not very helpful.”

Now, in light of the War on Terror, which most folks on the Right support enthusiastically, if extra-Constitutionally, that phrase Wood used, “the text of the Constitution is not very helpful,” is, well, very helpful.

Another area of ambiguity involves “state sovereignty,” a hot topic on the Tea Party circuit.  Writing in 2005, Wood said:

The Framers knew perfectly well that the Constitution they crafted took important powers away from the States (in response to the unsatisfactory experience under the Articles of Confederation), yet left many  powers still in state hands. With the latter especially in mind, they were careful (at least in the Tenth Amendment) to dissipate any impression of a negative inference about state power from the existence of the enumerated powers. But the express provisions of the Constitution leave much unsaid. They do not spell out, for example, answers to such important questions as whether Congress, acting pursuant to its Article I powers, may enact legislation creating rights that private parties may enforce against the States; if there is a pre-constitutional doctrine of sovereign immunity of the States, whether the scope of that immunity was absolute or restricted; and if the state sovereign immunity doctrine will evolve over the years in the same way as the foreign sovereign immunity doctrine.

The point is that there are ambiguities built into the Constitution, like who gets to determine when we are “at war,” and for how long, as well as the nature of the federal/state relationship.

And the Constitutional hand-wringing coming from folks who also think Obama is a foreign-born Muslim socialist/Communist, is not only dubious, it is flat-out indefensible.

The truth is that the Constitution is not a static set of rules, interpretable only by philosophically parochial judges.  Judge Wood’s lecture shows that the old document is in good hands when it is in the hands of those who see it as an adaptive instrument of governance.

And I wrote all of that in just under 1100 words. 

But you should read the rest of her lecture, because she has much to say about individual rights, liberty, “takings,” international human rights, “unwritten rules,” and so on.

I want to end with her short enumeration of why we, as Americans, have come to value what we value in terms of human rights, and how a 21st-century approach to interpreting the Constitution preserves what we value:

Our strong national commitment to individual rights…continues to depend on several crucial constitutional understandings that have always had their critics, and more recently have come under sharper attack. Those understandings include the following:

(1) broad language may legitimately be interpreted broadly, in a manner informed by evolving notions of a decent society;

(2) as a matter of federal constitutional law, some liberties are beyond the power of any governmental entity to deny;

(3) most parts of the Bill of Rights, in particular through the doctrine of selective incorporation, apply to state action as well as to federal action;

(4) constitutional principles can be inferred from sources such as the structure of the overall document and preconstitutional understandings.

Before anyone swallows the line of reasoning that will inevitable fall from the lips of conservative critics over the next few months regarding Obama’s latest Supreme Court nominee, one should read the words of a woman Obama should seriously consider—and then appoint—to our Supreme Court.

Who cares if Orrin Hatch gets pissed?


*Beck, performing a public service, has urged President Obama to appoint a “gay-handicapped-black woman who’s an immigrant.”  His rationale is,

She could be the devil, she could say ‘I hate America, I want to destroy America,’ and that way they’ll only be able to say, ‘Oh, Why do you hate gay immigrant black, gay, handicapped women.’ Because that’s what this has to be. It must be about.. And when I say this, I mean all of it.


  1. I included in my post on political correctness how a black lesbian in a wheelchair was somehow threatening to them. Now she’s shown up again!

    What is it with reactionary white dudes and gay handicapped black women? Is this a conservative meme of some kind? Is the gay handicapped black woman the epitome of nonstraightwhitedudeness? Was the Antichrist described as such or something?

    This requires an investigation.


  2. ansonburlingame

     /  April 13, 2010


    I admire your research on this topic however I did not read and study in detail your blog. Instead I scanned it. We’ll be hearing all this crap all summer and I for now will enjoy the spring or worry about nuclear doctrine for the time being.

    BUT, three small words (a quote) really got my attention. Judge Wood evidently said, in part “…value is evanescent.”

    I wonder what she really meant. If she meant the “value” of a commidity such as gold or food or…. then for sure it changes (up or down) over time and I have no argument but wonder what that has to do with constitutional law.

    IF however she really meant “valueS”, note the added “S” then I challenge at a very fundamental level. Do the “values” of honesty, or liberty, or compassion, etc. change over time?

    Some things are valuable at some point in history (like slaves) and worthless or illegal at others. But do fundamental values ever change or are they “God given” or immutable?

    THAT is a huge question for a possible Supreme Court Justice AND with the follow on question of “what are those immutable values,” if in fact they have any?

    If we can all agree on the list of fundamentals then we can argue forever on the specific definitions of each immutable value such as liberty. That’s OK because we are both promoting the same values with simply different ways (and priorities) to achieve them.


    PS Kaje, please feel free to investigate all the reactionaries and black lesbians you like. Include the Pope and Obama’s citizenship as well if you so choose. See previous blog comments on the last two.


    • Duane Graham

       /  April 14, 2010


      Scanning your comment, I noticed you had a question about what Judge Wood meant by her opening comments. In a nutshell, she meant that most things don’t age very well, but there are a few exceptions, including certain rare violins, certain rare vintages, and certain rare political documents, which by design allow for interpretative expansion, so that the said document does not evanesce.

      It had nothing to do with metaphysics or “fundamental values,” but I suspect that the good judge does have a few. By the way, you casually state that it doesn’t matter much how we define “fundamentals,” so long as we agree certain ones exist. I don’t know how you and I can possibly agree that any fundamental value exists without defining what it is, but I’m sure you can explain.



  3. ansonburlingame

     /  April 14, 2010


    Define values before agreeing that they exist, fundamental ones at least. Horse pucky.

    How about “life liberty and the pursuit of happiness”? I don’t see a dictionary attached to the Declaration of Independence but Jefferson and the signers thereto certainly accept them as fundamental.



  4. Duane Graham

     /  April 14, 2010


    The context of our discussion is the Supreme Court , the Constitution, and judicial philosophy (the subject of the post), so I will use the word “values” in that context, even though I realize that by definition the word “values” is more abstract and therefore more vague than maybe we both are using it here.

    Okay. Let’s just take “life,” as in the “right to life,” which you mentioned. I think on one level you are right: we can all agree that we have a right to life (the vagueness described above), which at first glance appears to be a tautology, since the “we” means “those of us who are alive.”

    But, when you think about it further, you realize that in order to actually codify into law what it means to have a “right to life,” in other words, to establish it as a legal “value,” we have to define what we mean. Do death-row inmates have a right to life? Do soldiers sent off to war have a right to life? Do zygotes? Fetuses? The severely and hopelessly handicapped?

    Even further, what does “life” even mean? Is a life of abject poverty really a “life”? Should rich people have to share some of their “life” with the poor? Are handicapped people entitled to the same kind of “life” that others enjoy, in terms of access to our streets, sidewalks, and businesses? Is locking up a criminal for the rest of his life really a “life”? Did Jim Crow laws diminish the “life” of black folks such that those laws should have been abolished?

    Those questions are not definitively answered by recourse to some kind of divine cache of wisdom, expressed on the pages of ancient books or uttered by contemporary theologians or even moral philosophers. Nor is the Constitution an instrument to provide lasting answers to those questions.

    Ultimately, they are answered, albeit tentatively, by some kind of contemporary earthly political authority, whether it be a king or a democratically-elected legislature that does the “people’s business” and writes and passes laws that attempt to answer those and other questions and establish the parameters whereby we can define what we mean by the “right to life.” In our system, the Supreme Court has a large role in finally deciding the answers, again somewhat tentatively, to some of those questions.

    So, while we may both say we believe that the “right to life” is a “fundamental” right or a cultural value, we may mean very different things, but we don’t leave it to private interpretation: we have legislative representatives (our “collective voice”) and the courts to come up with an evolving understanding of what “right to life’ means.

    Otherwise, simply calling the “right to life” a ” fundamental value” is meaningless.



  5. ansonburlingame

     /  April 15, 2010


    Honestly I am lost. Did I write or say anywhere that I thought the “right to life” was a fundamental value? I haven’t done a word search so may have done so but it was indavertent if I did.

    I could write a book on the subject and still not be clear where I stand on that issue. Death penalty, abortions, all sorts of issues associated with it that IF an absolute right to life does exist (depending in some cases the definition of life itself) then I would have to rethink my political views.

    My INTENT was to only use the clause in the Dec of Ind. to substantiate an opinion of fundamental values expressed without definition exactly in our founding documents. OK, now I see where you are coming from.

    LIFE, liberty and the pursuit of happiness. My INTENT was not to open the abortion can of worms in so stating. I agree with you that “all life is sacred or not to be touched or destroyed by government. Otherwise we could or would not send soliders into battle for example.

    Now let’s talk about my favorite subject, liberty. Thus far I find no points indicating that liberty is in fact not sacrosant UNLESS someone out of their own choice (murder) causes government to rightfully take it away.

    Maybe I should say that there are in fact “almost” fundamental values that should never be taken away and then only by due process of law and with extraordinarily careful thought how those laws affect ALL americans, not just a selected group.

    That gives you some wiggle room to put in social justice arguments without violiting something I might consider “fundamental”. But watch out for my “selected group” caveat.



    • Duane Graham

       /  April 15, 2010


      I was not just referring to abortion, and, no, you did not specifically bring it up. You quoted from the DOI and used “life, liberty, and the pursuit of happiness” as examples of fundamental values.

      Okay, the text of the DOI says,

      We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

      So, we have a “fundamental” “right” to “life” that supposedly comes from God. The point I was making is, “What does that mean?” You can call it fundamental all day, claim that God endowed it, but unless someone (courts, legislatures, etc.) defines the scope of the right, it is virtually meaningless, no matter what you, I or God call it.



  6. ansonburlingame

     /  April 16, 2010

    No argument there and as I said “as expressed by law” in acknowledging “rights”.

    Neither you nor I would suggest that “liberty” is BS. But we can and do argue all the time about the specifics as laws are developed and implemented. Which is just fine with me.



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