Judge Diane Wood On Constitutional Interpretation
Federal Seventh Circuit Appeals Court Judge Diane Wood (appointed in 1995 by President Clinton) is rumored to be on the short list of candidates for appointment to the Supreme Court by President Obama. Wood, in contrast to appeals court Sonia Sotomayor, has received a favorable review from TNR's Jeff Rosen (ironically, Rosen objected to her elevation to the 7th Circuit.) But Wood's views on constitutional interpretation are likely to be attacked by extreme conservative legal commentators. This 2004 talk at NYU (via SCOTUSblog) is likely to be the focal point of attack. A key snippet:
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.
Fighting words for the the extreme right wing legal community. More . .
Wood recognizes that for all this talk about "originalism," the real issue for the extreme right is in the area of individual rights (other than the right to bear arms, for which they are quite adamant):
No one in the United States thought that we had come to such a pass during the heyday of American leadership in the field of human rights, which began right after World War II and continued through at least the end of the Cold War era. Our strong national commitment to individual rights, however, depended during that period and continues to depend on several crucial constitutional understandings that have always had their critics, and more recently have come under sharper attack. [FN121] 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. I will elaborate on these points in order.
First and most important is the idea that we should take seriously the fact that the text of the Constitution tends to reflect broad principles, not specific prescriptions. Neither James Madison, for whom this lecture is named, nor any of the other Framers of the Constitution, were oblivious, careless, or otherwise unaware of the words they chose for the document and its Bill of Rights. The papers they left behind leave no doubt that they hoped to be writing for the ages. There is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.
That is exactly what the Framers did. Rather than spelling out every last detail of the structure of government and of the way that government would relate to individual citizens, they chose to enshrine only the broadest principles in the Constitution. Whether they were doing so for lofty reasons or, as appears to be the case in some instances, out of political expediency, hardly matters; what does matter is the language that was ultimately adopted. One need not write in this way, of course, and we can see the alternative approach reflected in the constitutions of some states. Perhaps the ultimate example of this is the Constitution of Texas, which today runs more than two hundred pages long, and, as of 2003, has been amended 432 times (out of a total of 606 possible amendments passed by the Texas legislature). [FN122] Had the Federal Constitution followed that model, it would undoubtedly by now contain a comparable number of amendments. It is even possible that those amendments would protect the very same individual rights that have emerged instead through constitutional interpretation. But there was no need to burden the Federal Constitution with endless amendments, because it was supple enough to accommodate this growth without them.
To be frank, this seems so obvious that it amazes me that it is a point of contention. Understanding the political goals of the extreme conservative, I am still at a loss to understand intellectually how their arguments hold up. In fact, they do not.
In today's political environment, it will be interesting to watch how the extreme conservative legal commentariat attacks Judge Wood on this, if she is selected by President Obama for the Court.
In any event, this talk (I will need to review her entire record for a more comprehensive take) from Judge Wood provides me with some confidence that she would be a solid Justice.
Speaking for me only
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