New York University Law Review October, 2005



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III
What Would the Literal Constitution Look Like, and Why Has Everyone Rejected It?
      The literal Constitution, for which some have argued, would be a woefully inadequate document for the American people today.  As a matter of constitutional structure, it would require a radical restructuring of the administrative state, placing a nearly unbearable legislative burden on the Congress to specify in detail exactly what powers it was conferring on executive branch agencies and to monitor the minutiae through some kind of oversight mechanism.  Presidents would lose the flexibility to make adjustments in the rate of federal spending.  The ability of the commander in chief to take rapid action to protect the United States against unusual threats that do not correspond to any eighteenth-century model would be severely compromised if we were required always to wait for the Congress to pass a resolution declaring war.  Taking a strict view of the Commerce Clause (and taking cases like United States v. Lopez [FN139] and United States v. Morrison [FN140] to their logical extreme), it would be impossible for the United States to function as a single integrated economic entity. This would be ironic indeed, given the fact that the European countries have steadily been increasing the size of their own common market from the original six countries that founded what has become the European Union (EU) in 1958 to the powerhouse of twenty-five countries today. They have done so by conferring upon EU institutions the power to enact EU-wide regulations in all areas affecting trade between member states. The United States achieved this goal almost two centuries earlier, thanks to the early Commerce Clause decisions of Chief Justice John Marshall, [FN141] but all that would be up for grabs if one were to try to discern and adopt the strictest possible reading of the eighteenth-century document.
      The story would be even more disturbing in the area of individual rights.  Like many people, I thought it was regrettable at best, absurd at worst, when the United States lost its place on the United Nations Commission on Human Rights in 2002, after continuous membership from 1947 through 2001, even though it then resumed membership from 2003 to the present. [FN142] This was hardly a reflection of the actual record of leadership in the field of human rights that the United States has built. The fact that there are blemishes on this record only says that we have not been perfect. But the legal tools are in place to correct problems when they arise, if we have the political will to use them. That toolbox would be sorely depleted if we were to decide now that the Constitution cannot protect the full range of individual rights after all.
      But, one might say, the states also have their Bills of Rights and judiciaries ready and willing to implement them.  That is true, but irrelevant.  It ignores the lessons of history that brought us the Civil War Amendments: States may fail at times to respect due process and to give equal protection of the laws, and these are exactly the times when, in a unified nation, federal law must step in. [FN143] It also ignores the fact that it is usually local prejudices that must be overcome, and a national perspective is the best way to accomplish that task. From the standpoint of protecting international human rights, the only relevant actor is the United States as a whole. The Constitution confers the entirety of the foreign affairs power on the federal government [FN144] and thus places the entire responsibility for compliance with international norms at the federal level.
      If we really had a narrow, literal Constitution, it would be ready for the dustbin unless it was amended significantly.  But logical consistency should force even the most zealous advocates of “original intent” and “plain language” to admit that we have long since crossed the Rubicon. No principle allows one to draw a distinction between asserting the legitimacy of a living constitution when it comes to structural matters, and denying the validity of the same approach when it comes to individual rights. This means that we face a stark choice: disregarding the strong textual and historical evidence indicating that the Framers themselves used broad language to facilitate constitutional growth and turning the clock back two centuries for all purposes, or accepting the fact that elaborations of all parts of the Constitution will occur over the years. The former choice is, in my opinion, exceedingly unattractive. It would lead in the long run to a federal constitution that looks like the most detailed of today's state constitutions--for example, the constitution of my adopted home state of Texas, for which the word micromanagement was invented. [FN145]
      If we were doomed to go down that path by something we could find in the constitutional text, we would have to live with it.  But we are not.  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.  They knew that courts would need to define and interpret words like “liberty,” “cruel and unusual,” “due” process, and “equal” protection. They also knew, having given Congress the power to pass “necessary and proper” legislation, that the reach of federal legislation was likely to change over time. The fact that the federal government of 2005 does not look much like the federal government of 1789, and the fact that the list of recognized individual rights has expanded, should not cause weeping and gnashing of teeth.
Conclusion
      Instead, those developments demonstrate that the Constitution has proven to be up to the job.  It has realized the fondest hopes of its creators, and it has put to rest their worst fears.  Debate over its meaning is inevitable whenever something as specific as the Bankruptcy Clause or the Titles of Nobility Clause is not at issue, but the existence of debate does not imply that one side's position is illegitimate, unpatriotic, or otherwise unworthy, while the other side's position is foreordained.
      Both courts and society would be stronger if we stopped arguing over the interpretive conventions of so-called original intent versus purposive or dynamic interpretation [FN146] and focused instead on content. This does not mean that courts should or could legitimately ignore the constitutional text. Far from it; the text will always be the proper starting point. It does mean, however, that we should understand both the words in the text and the structure of the constitutional system at a high level of generality. When it is presented with the question of whether a punishment is “cruel and unusual,” or whether a state is denying “equal protection of the laws,” or whether a certain right should be regarded as a constitutionally protected “liberty,” the Court ought to consider what those terms mean in today's world, cognizant of the norms Americans have adopted, whether those norms flow from our membership in the human race as a whole or are more particularized. It must then explain how the more specific rules flow from the constitutional language and framework. In that way, evolution will continue to occur through adjudication. There is no reason to suppose that it will move systematically in either a “liberal” or a “conservative” direction, as any observer of the change from the original Roe v. Wade decision to the current regime governing abortion represented by decisions like Planned Parenthood v. Casey, [FN147] Maher v. Roe, [FN148] and Harris v. McRae [FN149] knows well. The same point is reflected in the evolution from Plessy v. Ferguson [FN150] to Brown v. Board of Education, [FN151] or the contrast between Korematsu v. United States [FN152] and Rasul v. Bush [FN153] and Hamdi v. Rumsfeld. [FN154]
      If the interactive process that occurs through dialogue among the Supreme Court, the lower courts, legal scholars, and society at large, coupled with the occasional changes in personnel on the Court over time, is not fast enough for modern tastes, then and only then would it be advisable to consider amending the Constitution.  But, taking a page from the Founders, the way to amend it would not be to add long laundry lists of recognized rights and prohibitions that enshrine one generation's pet issues into the document forever and doom it to obsolescence.  Suppose, for example, we had written the original Pledge of Allegiance of 1942 [FN155] into the Constitution. It then would have taken a constitutional amendment in 1954 to add the words “under God” to the text, rather than simply changing it by legislation. [FN156] Or, more seriously, what if the Constitution had enshrined the Jim Crow system, or the view of women expressed in such infamous decisions as Bradwell v. Illinois [FN157] or Goesaert v. Cleary? [FN158] Over the long run, even though it can sometimes be frustrating to wait for the long run, it has been better to allow constitutional understandings to grow with the times.
      If, and only if, one were to conclude that there is a broad, systematic problem with the pace of constitutional change, should one consider how to address that (hypothetical) problem.  On this point also, we would be well advised to take a page from the book of the Framers and to look to structural mechanisms.  If the problem is, as President Franklin Roosevelt once thought, the lack of turnover on the Supreme Court, then one might reconsider whether there should be some outer limit for the number of years any particular Justice can serve. If the amendment process is not enough (though it is worth noting that the Constitution has been amended six times since 1950), [FN159] then we might look north and adopt some mechanism like the power of the legislature in Canada to override constitutional holdings in extraordinary circumstances--a power that is rarely used, to be sure, but that stands as yet another democratic safeguard. [FN160] However radical these options might seem--and I do not wish to be understood as advocating either of them--they would be far preferable to the expedient of refusing to recognize any constitutional right or structure that has not been spelled out in black and white in the document itself, abandoning the timeless principles that have served us so well, for so long. Our eighteenth-century Constitution, while a bit cryptic at the edges, is nonetheless a real treasure. Approached the right way, there is every reason to be confident that the dynamic process that has sustained it will continue to do so through the years, decades, and even centuries to come.
[FNa1]. Copyright © 2005 by Diane P. Wood, Judge, United States Court of Appeals for the Seventh Circuit. B.A., 1971, University of Texas at Austin; J.D., 1975, University of Texas Law School. An earlier version of this essay was delivered for the James Madison Lecture on October 18, 2004 at the New York University School of Law.
[FN1]. The population of the United States is now 294,379,807 according to the website maintained by the U.S. Census Bureau. See U.S. Census Bureau, Population Clocks, http://www.census.gov (last visited September 27, 2004).
[FN2]. See generally Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987).
[FN3]. U.S. Const. art. I, § 3, cl. 4.
[FN4]. U.S. Const. art. I, § 3, cl. 6.
[FN5]. U.S. Const. art. I, § 7, cl. 2.
[FN6]. U.S. Const. art. II, § 2, cl. 2.
[FN7]. U.S. Const. art. III, § 2, cl. 2.
[FN8]. See H.R. 2028, 108th Cong. (2004). For one view of the reason why such a bill might be passed, see Newt Gingrich, Runaway Courts, Wash. Times, Sept. 23, 2004, at A19.
[FN9]. U.S. Const. amend. XVI.
[FN10]. U.S. Const. amend. XVII.
[FN11]. U.S. Const. amend. XXVII.
[FN12]. U.S. Const. amend. XII.
[FN13]. U.S. Const. amend. XIV.
[FN14]. U.S. Const. amend. XX.
[FN15]. U.S. Const. amend. XXII.
[FN16]. U.S. Const. amend. XXV.
[FN17]. U.S. Const. art. IV, § 1.
[FN18]. U.S. Const. art. IV, § 2, cl. 1.
[FN19]. U.S. Const. art. IV, § 2, cl. 2.
[FN20]. U.S. Const. art. IV, § 3.
[FN21]. U.S. Const. art. VI, cl. 2.
[FN22]. U.S. Const. amend. X.
[FN23]. U.S. Const. amend. XI.
[FN24]. 462 U.S. 919, 967 (1983) (White, J., dissenting).
[FN25]. Id. at 978.
[FN26]. 424 U.S. 1, 280-81 (1976) (White, J., concurring in part and dissenting in part).
[FN27]. 285 U.S. 22 (1932).
[FN28]. 33 U.S.C. §§ 901 to 950 (2000).
[FN29]. 285 U.S. at 62-63.
[FN30]. 310 U.S. 381, 397, 400 (1940).
[FN31]. 15 U.S.C. §§ 828 to 852 (repealed 1966).
[FN32]. 310 U.S. at 398.
[FN33]. 295 U.S. 602 (1935).
[FN34]. Id. at 631, 630 (emphasis added).
[FN35]. 488 U.S. 361 (1989).
[FN36]. Id. at 368. In the wake of United States v. Booker, 124 S. Ct. 738 (2005), the Commission's role has changed from enacting legally-binding sentencing rules to writing advisory guidelines. Its structural legitimacy, however, was unaffected by that decision.
[FN37]. Chief Justice Warren Burger wrote for the six-person majority; Justice Lewis Powell filed an opinion concurring only in the judgment; Justices White and Rehnquist each filed a dissenting opinion, with Justice White joining Justice Rehnquist's dissent. 462 U.S. 919, 922 (1983).
[FN38]. 501 U.S. 252 (1991).
[FN39]. Id. at 277 (White, J., dissenting).
[FN40]. 2 U.S.C. §§ 681-688 (2000).
[FN41]. Id. § 681.
[FN42]. Gerald Gunther, Constitutional Law 332 (12th ed. 1991).
[FN43]. Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified as amended at 50 U.S.C. §§ 1541-1548 (2000)).
[FN44]. 527 U.S. 706 (1999) (holding that Congress has no power under Article I to subject nonconsenting states to private suits for damages in state courts).
[FN45]. Id. at 713.
[FN46]. Id.
[FN47]. 535 U.S. 743 (2002) (holding that state sovereign immunity precludes federal administrative agency from adjudicating private party's complaint against state entity).
[FN48]. Id. at 753.
[FN49]. The Federalist No. 10 (James Madison).
[FN50]. See, e.g., Willi Paul Adams, The First American Constitutions 299 (2001) (referring to The Federalist No. 84, where Alexander Hamilton defended omission of bill of rights).
[FN51]. Compare United States v. Miller, 307 U.S. 174 (1939) (construing Second Amendment as protecting right to bear arms only insofar as it relates to maintenance of militia), United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004) (same), and United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (same), with United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (rejecting so-called “collective rights model” and finding individual right to bear arms). See also Printz v. United States, 521 U.S. 898, 938 n.2 (1997) (Thomas, J., concurring) (citing literature advocating individual rights model).
[FN52]. U.S. Const. amend. XIV.
[FN53]. U.S. Const. amend. V.
[FN54]. Id.
[FN55]. U.S. Const. amend. VI.
[FN56]. U.S. Const. amend. VIII.
[FN57]. U.S. Const. amend. XIII.
[FN58]. U.S. Const. amend. XV.
[FN59]. U.S. Const. amend. XIV (emphasis added).
[FN60]. U.S. Const. amend. XIX.
[FN61]. U.S. Const. amend. XXIV.
[FN62]. U.S. Const. amend. XXVI.
[FN63]. 198 U.S. 45 (1905).
[FN64]. Id. at 56.
[FN65]. Meyer v. Nebraska, 262 U.S. 390 (1923).
[FN66]. But see Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (dismissing on standing and mootness grounds case challenging 1988 amendment to Arizona Constitution making English official language of Arizona).
[FN67]. Id. at 399.
[FN68]. Id. at 401.
[FN69]. 268 U.S. 510 (1925).
[FN70]. Id. at 535.
[FN71]. 431 U.S. 494 (1977).
[FN72]. At the time, 28 U.S.C. § 1257 (1988) provided for appellate jurisdiction in cases where the state courts had upheld a state law against a federal constitutional challenge. This changed in 1988 with the passage of the Supreme Court Case Selections Act, Pub. L. No. 100-352, § 3, 102 Stat. 662, 662 (1988) (codified at 28 U.S.C. § 1257(a) (2000)), which repealed the U.S. Code sections creating appellate jurisdiction and substituted certiorari for all requests to review decisions from state courts.
[FN73]. 431 U.S. at 499.
[FN74]. Id. at 506-13.
[FN75]. Id. at 513-21.
[FN76]. Id. at 521-31.
[FN77]. Id. at 531-41.
[FN78]. Id. at 541-52.
[FN79]. Id. at 546.
[FN80]. 302 U.S. 319 (1937).
[FN81]. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (finding unconstitutional criminalization of adult consensual homosexual unions); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (concerning abortion); Carey v. Population Servs. Int'l, 431 U.S. 678 (1977) (regarding distribution and advertising of nonprescription contraceptives to minors); Roe v. Wade, 410 U.S. 113 (1973) (abortion); Eisenstadt v. Baird, 405 U.S. 438 (1972) (concerning distribution of contraceptives to unmarried individuals); Griswold v. Connecticut, 381 U.S. 479 (1965) (concerning access of married couples to contraceptives). Compare the preceding cases with Loving v. Virginia, 388 U.S. 1 (1967), which struck down Virginia's anti-miscegenation law on equal protection grounds, despite the fact that at least from one point of view, the racial classification by definition affected whites and blacks identically. Interestingly, the Court observed along the way that “the State does not contend ... that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer ... and Skinner v. Oklahoma.” Id. at 7 (internal citations omitted). The Court in Skinner struck down Oklahoma's forced sterilization of certain criminals as a violation of the Equal Protection Clause. 316 U.S. 527, 538 (1942).
[FN82]. See Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997); see also Oregon v. Gonzales, 368 F.3d 1118 (9th Cir. 2004), cert. granted, 125 S. Ct. 1299 (2005) (presenting question whether Attorney General may interpret federal law to prohibit distribution of federally controlled substance to facilitate suicide, regardless of state law authorizing such distribution). After this lecture was delivered, the nation's attention became riveted by the case of Theresa Marie Schiavo, where the question was whether any law, federal or state, prevented Mrs. Schiavo's husband from ordering that her feeding tube be disconnected, in light of medical advice that she had for many years been in a persistent vegetative state. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005); Schiavo ex rel. Schindler v. Schiavo, 404 F.3d 1270 (11th Cir. 2005), stay denied, No. 04A844, 125 S. Ct. 1722 (2005). Although the Supreme Court did not intervene, and Mrs. Schiavo was allowed to die, it appears as of the time of this paper that the issues presented are far from resolved.
[FN83]. 125 S. Ct. 2655 (2005).
[FN84]. Id. at 2661.
[FN85]. Id. at 2663-66.
[FN86]. G.A. Res. 217, U.N. GAOR, 3d Sess., pt. 1, 183d plen. mtg., at 71, U.N. Doc. A/810 (1948).
[FN87]. The following list of human rights conventions presently in force in the United States is taken from Treaty Affairs Staff, U.S. Dep't of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2004, available at http:// www.state.gov/s/l/38294.htm: (1) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 24 I.L.M. 535 (entered into force June 26, 1987; for U.S. Nov. 20, 1994); (2) Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for U.S., Nov. 1, 1968); (3) International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Exec. Doc. E (1978), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976; for U.S., Sept. 8, 1992); (4) International Covenant on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, S. Exec. Doc. C (1978), 660 U.N.T.S. 211 (entered into force Jan. 4, 1969; for U.S., Nov. 20, 1994); (5) Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951; for U.S., Feb. 23, 1989); (6) Inter-American Convention on the Granting of Political Rights to Women, May 2, 1948, 27 U.S.T. 3301, 1438 U.N.T.S. 63 (entered into force Mar. 17, 1949; for U.S., May 24, 1976); (7) Convention on the Nationality of Women, Dec. 26, 1933, 49 Stat. 2957, 3 Bevans 141 (entered into force Aug. 29, 1923; for U.S., Aug. 29, 1934).
[FN88]. See, e.g., International Covenant on Civil and Political Rights, 6.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., 1496th plen. mtg. at 168-74, U.N. Doc. A/631b (1966), United States, Understandings and Declarations (describing in greater detail relation between U.S. law and Convention obligations).
[FN89]. See Office of the United Nations High Comm'r for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties (June 9, 2004), available at www.unhchr.ch/pdf/report.pdf.
[FN90]. International Covenant on Civil and Political Rights, art. 3, supra note 87, S. Exec. Doc. E at 24, 999 U.N.T.S. at 174.
[FN91]. Id., art. 6.1, S. Exec. Doc. E at 25, 999 U.N.T.S. at 174.
[FN92]. Id., art. 7, S. Exec. Doc. E at 25, 999 U.N.T.S. at 175.
[FN93]. Id., art. 8, S. Exec. Doc. E at 25, 999 U.N.T.S. at 175.
[FN94]. Id., art. 9.1, S. Exec. Doc. E at 26, 999 U.N.T.S. at 175.
[FN95]. Id., art. 12, S. Exec. Doc. E at 27, 999 U.N.T.S. at 176.
[FN96]. Id., art. 14, S. Exec. Doc. E at 27, 999 U.N.T.S. at 176.
[FN97]. Id., art. 14.5, S. Exec. Doc. E at 28, 999 U.N.T.S. at 177.
[FN98]. Id., art. 15.1, S. Exec. Doc. E at 28, 999 U.N.T.S. at 177.
[FN99]. Id., art. 17, S. Exec. Doc. E at 29, 999 U.N.T.S. at 177 (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”).
[FN100]. Id., art. 18, S. Exec. Doc. E at 29, 999 U.N.T.S. at 178.
[FN101]. Id., art. 19, S. Exec. Doc. E at 29, 999 U.N.T.S. at 178. But see id., art. 20, S. Exec. Doc. E at 29, 999 U.N.T.S. at 178, which provides that there is no right to advocate national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The United States has taken an exception to this language, insofar as it might prohibit speech that is protected by the First Amendment.
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