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.