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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    I would be very content (5.00 / 5) (#8)
    by TChris on Thu May 21, 2009 at 03:49:56 PM EST
    to have Judge Wood become Justice Wood.  Having had the opportunity to argue before her many times, and having followed Seventh Circuit decisions with particular interest, I have enormous regard for Judge Wood's intellect and for her appreciation of constitutional values.  She regularly goes toe-to-toe with the court's two intellectual heavyweights (Judges Posner and Easterbrook) and she manages to do so without being snide or condescending.  She clearly has the empathy that Obama says he's looking for.

    While Federalist Society members would undoubtedly complain that Judge Wood does not worship at the altar of originalism, right wing extremists won't get far by debating doctrines of constitutional interpretation -- a debate that doesn't resonate with the average non-lawyer.  I suspect the more effective (albeit unsuccessful) attack will focus on Judge Wood's strong record of support for a woman's constitutional right to make her own reproductive choices.  

    Toe-to-toe with heavyweights (5.00 / 3) (#10)
    by RonK Seattle on Thu May 21, 2009 at 05:36:23 PM EST
    Strikes me as a requisite for this appointment, as we have a heavyweight or two (and bullies regardless of weight class) on the right of the bench.

    If she spars on even terms and maintains equanimity with Posner and Easterbrook, there's much to recommend her.


    Given your familiarity (none / 0) (#9)
    by Big Tent Democrat on Thu May 21, 2009 at 03:57:01 PM EST
    I have to request that you  write a post detailing your assessment.

    I was spurred to write about this because of her stated views on constitutional interpretation. But your take would be much more valuable to all of us.


    Maybe it's because I'm taking Con Law (none / 0) (#1)
    by andgarden on Thu May 21, 2009 at 03:16:43 PM EST
    But I've been thinking a lot about this stuff lately. I don't understand how anybody who accepts McCulloch, for example, can possibly make an honest argument for the "conservative" position.

    Judge Wood's stock goes up for me.

    Jack Balkin's article in Slate from a few years ago rings very true for me:

    We are all living constitutionalists now. But only some of us are willing to admit it.

    Earlier today (none / 0) (#2)
    by Steve M on Thu May 21, 2009 at 03:17:38 PM EST
    I saw this post from Prof. Randy Barnett regarding his proposal to enact a "Bill of Federalism" that would return us to the original understanding regarding state and federal powers.

    Now, I think Prof. Barnett is a little "out there" on some issues, but I find him to be a smart and thoughtful guy.  I don't just skip past his posts.

    But honestly, what I seldom see amidst all this talk of the "original understanding" is any kind of normative argument that the original understanding was actually, you know, BETTER.  I think the Framers came up with a distribution of powers that they felt worked best for their time and their world.  I think we try to do things in the way that works best for our time and our world, which is a much different world.  I think the Framers left many things open and flexible because they knew or intuitively understood that things would not always be the same in the future.

    Now, I could see the argument that courts should adhere to the original understanding not because it is better, but simply for reasons of legitimacy.  I think Bork used to make arguments along these lines - if you don't decide cases according to the original understanding, then you literally have nothing else to anchor yourself to and are just "making it up."  But I dunno, surely some folks think the black-robed tyrants lack legitimacy, but for most of us the world keeps trucking along just fine even though Wickard v. Filburn remains good law.

    I don't think the Framers would be all that shocked and appalled by our current system and the division of state and federal powers that we have hashed out over the years.  I think they would have little problem accepting that interstate commerce is a much different animal in today's world than it was in theirs.  But more to the point, I really don't think the question of whether the Founders would be upset is the be-all and end-all of Constitutional interpretation.  In the words of Holmes, it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.

    Liberal Originalism (none / 0) (#3)
    by Big Tent Democrat on Thu May 21, 2009 at 03:21:14 PM EST
    is very much in vogue now. See Balkin and yes, me, on the subject.

    It was nice of you (none / 0) (#4)
    by Steve M on Thu May 21, 2009 at 03:27:51 PM EST
    to list Prof. Balkin before yourself!

    Would the adherents of liberal originalism agree or disagree with what I just wrote?  I don't have a mirror handy to read the jurisprudential label on my own forehead.


    Speaking for me only (none / 0) (#5)
    by Big Tent Democrat on Thu May 21, 2009 at 03:30:44 PM EST
    I emphasize something different than what you focused on.

    You've read me on the subject I am assuming.

    As for listing Balkin first, I have to say that while I was only writing about the issue on a blog (Daily Kos), my work on the issue predates Balkin's law review articles.

    Just sayin'


    BTW (none / 0) (#6)
    by Big Tent Democrat on Thu May 21, 2009 at 03:31:29 PM EST
    If Wickard were overruled, we would be in a heap of chaos.

    Wood makes a good point on that.


    mmmmm? (none / 0) (#11)
    by NYShooter on Thu May 21, 2009 at 06:39:37 PM EST
    circa 1776
    "I don't think the Framers would be all that shocked and appalled by our current system and the division of state and federal powers that we have hashed out over the years."
    circa century 21

    "Judges should interpret the law, not legislate from the bench"


    Supreme Court... December 12, 2000
    per curiam decision 531 U.S. 98

    But this made it all right:

    "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."


    Once again (none / 0) (#7)
    by jbindc on Thu May 21, 2009 at 03:37:40 PM EST
    Aaron Sorkin was prescient - why can't the right wingers see this?

    SAM: In 1787, there was a sizable block of delegates who were initially opposed to the Bill of Rights. One member of the Georgia delegation had to stay by way of opposition:
    "If we list the set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated and no more. The framers knew..."

    Were you just calling me a fool, Mr. Seaborn?

    I wasn't calling you a fool, sir, the brand new state of Georgia was.

    How about limited judivcial powers? (none / 0) (#12)
    by diogenes on Thu May 21, 2009 at 10:23:35 PM EST
    If you want 21st century, then let the courts rule on laws in the context of what the 21st century legislature passes.  How are five justices on the Supreme Court more qualified to do ongoing revisionism than the elected legislature?  The Supreme Court will then be the arbiter of cases where lower courts do not correctly apply laws, as a highest appellate court should be.  It would also be able to interpret Congress's original intent if it is disputed based on a lower court ruling.  It would never get from no abortions to Roe vs. Wade in one fell swoop.

    Well in fact (5.00 / 1) (#13)
    by Steve M on Thu May 21, 2009 at 10:30:22 PM EST
    that's exactly what the New Deal court did.  Got out of the way and let the legislature confront the problems of the time in innovative ways.

    Thing is, demanding that the courts defer to the legislature sounds great if you're an opponent of abortion or interracial marriage or desegregated schools, but in other contexts you suddenly find yourself demanding that the courts rise up and strike down the enactments of that activist legislature.  That's because insisting on deference to the legislature is not a jurisprudential philosophy, but a political argument, to be freely tossed aside when it's not convenient.