Academic

Supreme Court Speculation and Diane Wood's Extra-Judicial Writing

By Alfred Brophy

In Thursday morning's Washington Post, Robert Barnes and Shailagh Murray suggest that two former law professors, Diane Wood and Elena Kagan, are emerging are front-runners for nomination to the Supreme Court.  Ann Althouse clued us in recently that the "conventional wisdom" (err, Intrade) likes Wood and Kagan, too.  

 No one needs to be told that the world has shrunk, that human rights violations in one part of the world are not only morally reprehensible but also have practical repercussions elsewhere, that environmental problems demand international solutions, that weapons of mass destruction know no boundaries, and that the world has become a single economic unit. The question instead is how to bring our laws and legal institutions into line with this reality. Here, in the middle ground between the philosophy and cookbooks that have largely characterized international legal scholarship, the need for creative thinking and innovative scholarship is pressing. 

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. To be old is all too often to be out of date and ready for disposal. In this paper, I explore which conception of age better describes our Constitution--now 215 years old. Is this eighteenth century document, along with its eighteenth century Bill of Rights and other seventeen Amendments, still up to the job? How well is it serving the demands we are placing upon it, particularly in the area of individual rights, or what international scholars call human rights?

One's answer depends critically on which model of constitutional interpretation one chooses: the originalist approach or the dynamic approach. While there may be a certain attraction to so-called ?plain language? literalism, the Constitution, when viewed in that light, fares badly as a charter for twenty-first century America. On the other hand, while the dynamic approach has prevailed over time, for the most part, and allowed the Constitution to adapt to the demands of a modern society, this approach has proven vulnerable to criticism.

... 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.

But not all have welcomed this achievement. The doctrines the Supreme Court has used to allow the Constitution to grow with the times have been hotly contested. Many people today question whether the Court has strayed too far from the original intent of the Framers. They also assert that it is not proper to look to foreign experience when we consider which human rights have constitutional status. While critics are right to note that some of the most important constitutional developments rest on what some have called the ?unwritten Constitution,? this does not mean that we should reject them. The price of doing so would be far too high both for the structural provisions of the Constitution and our commitment--both domestically and internationally--to the protection of human rights. Rejection would be tantamount to an unnecessary conclusion that the Constitution has indeed outlived its usefulness. It is time, therefore, 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.

Full post as published by The Faculty Lounge on May 23, 2009 (boomark / email).