New York University Law Review October, 2005

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New York University Law Review

October, 2005

Madison Lecture
The Honorable Diane P. Wood [FNa1]
Copyright (c) 2005 New York University Law Review; The Honorable Diane P. Wood
      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  To be old is all too often to be out of date and ready for disposal.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.
      How serious is that criticism?  Has the time now come for us to consider amending our basic charter to bring it up to date, taking to heart the advice that so many American scholars have so assiduously given over the last decade and a half to countries emerging from the Communist shadow?  One who advocates a narrow, text-based approach to the Constitution would be compelled to answer that the Constitution has reached the end of its rope, for reasons I shall explain in this paper.  If, on the other hand, 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.  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, [FN1] 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,” [FN2] 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.
What Do We Expect of the Constitution?
      In order to set the stage, let me begin by reviewing what we rightly expect the Constitution to do, and how well it manages to meet those expectations.  It is well understood that the United States Constitution, like most constitutions, contains both provisions that allocate powers among the institutions of government and provisions that protect individual rights.  A quick overview of both areas is enough to illustrate how far we have evolved in each one from the literal text of the Constitution and how much we depend upon the elaboration that has largely come from the Supreme Court.
A. Structural Rules
      Because the original Constitution was primarily concerned with the structure of the new federal government, and because its first three articles are almost exclusively about structure, let me begin there.  We are all familiar with the basic outline.  Despite the absence of an article or clause announcing that the new United States would adopt a modified structure of separation of powers, where a system of checks and balances would operate, it is plain from Articles I, II, and III of the Constitution that this is exactly what was being done.  Moreover, as everyone knows, the Constitution spells out numerous ways in which each branch was to interact with its fellows.  To name just a few examples, the Vice President presides over the Senate; [FN3] the Senate tries all impeachments; [FN4] before a bill becomes law, the President must sign it, or a supermajority of Congress must pass it over his veto; [FN5] the President's appointment and treaty powers are limited by the need to obtain the Senate's advice and consent; [FN6] and the appellate jurisdiction of the Supreme Court is subject to “such Exceptions, and . . . Regulations as the Congress shall make.” [FN7] The last of these has been in the news recently in connection with legislation passed by the House of Representatives that would strip the Supreme Court of jurisdiction to hear cases challenging the phrase “under God” in the Pledge of Allegiance. [FN8]
      There are additional structural rules found in the Constitution and its Amendments.  Congress's power to tax was the subject of the Sixteenth Amendment; [FN9] the Seventeenth Amendment changed the way in which Senators are chosen; [FN10] and the Twenty-Seventh Amendment governs laws affecting the compensation of members of Congress. [FN11] The text of the Constitution also contains rules about federal elections in the Twelfth Amendment, [FN12] the Fourteenth Amendment, [FN13] the Twentieth Amendment (which sets the dates from which the terms of the President and the Congress run), [FN14] the Twenty-Second Amendment (which limits any one person to two terms as President), [FN15] and the Twenty-Fifth Amendment (which outlines what happens upon the disability or death of the President). [FN16]
      Finally, the Constitution has a few things to say about the federal structure of the nation, although not as much as one might think.  Principal among these textual provisions is Article IV of the original Constitution, which contains such important guarantees as the Full Faith and Credit Clause, [FN17] the Privileges and Immunities Clause, [FN18] the Extradition Clause, [FN19] and the rules for admitting new states and governing territories. [FN20] Article VI contains the Supremacy Clause, which addresses the place of federal law in the hierarchy of federal and state law. [FN21] In addition, the Tenth Amendment underscores the fact that the federal government is indeed a government of limited and delegated powers, and that the powers not specifically given to it are reserved to either the States or the people. [FN22] Last, there is the Eleventh Amendment, which, to a literalist says that federal judicial power does not extend to cases brought against a State by a citizen of another State. [FN23]
      That all sounds comprehensive, but it has turned out not to be enough for a growing country.  I mention here some of the more important structural doctrines that developed, particularly in the twentieth century, to help the United States adapt to its changing size and to the changing world.
      Justice Byron White eloquently took note of these changes in his dissenting opinion in INS v. Chadha, [FN24] which held the single-house legislative veto unconstitutional. Explaining why he would have upheld this device, which by that time appeared in nearly 200 statutes, he wrote as follows:
       From the summer of 1787 to the present the Government of the United States has become an endeavor far beyond the contemplation of the Framers.  Only within the last half century has the complexity and size of the Federal Government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective if not the only means to insure its role as the Nation's lawmaker.  But the wisdom of the Framers was to anticipate that the Nation would grow and new problems of governance would require different solutions.  Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles. [FN25]

      Even though Justice White made this point in dissent, its basic truth has been reflected many times over in the Court's majority opinions.  Justice White himself commented in his separate opinion in Buckley v. Valeo that “[t]here is no doubt that the development of the administrative agency in response to modern legislative and administrative need has placed severe strain on the separation-of-powers principle in its pristine formulation.” [FN26] But, he went on, there is similarly no doubt that the independent agency has come to be accepted as an important and lawful part of the federal government. The New Deal ushered in the administrative state, and along with it the Court's decisions rejecting constitutional challenges to the so-called independent agency. In Crowell v. Benson, [FN27] the Court considered the constitutionality of certain provisions of the Longshoremen's and Harbor Worker's Compensation Act [FN28] that called for the use of a deputy commissioner to find critical jurisdictional facts. It came to the brink of holding the statute unconstitutional as an impermissible infringement of the powers of the judicial branch. It pulled back at the last minute, saving the statute with a narrow construction, under which the ultimate fact of employment would be determined by a court. [FN29] Even more frankly, in Sunshine Anthracite Coal Co. v. Adkins [FN30] it found that the Bituminous Coal Act of 1937 [FN31] did not contain an invalid delegation of legislative or judicial powers to the Bituminous Coal Commission, noting pragmatically that “the effectiveness of both the legislative and administrative processes would become endangered if Congress were under the constitutional compulsion of filling in the details beyond the liberal prescription here.” [FN32] In a similar vein, the Court a few years earlier had held in Humphrey's Executor v. United States [FN33] that a commissioner of the Federal Trade Commission was not a “purely” executive officer and thus could not be removed at the President's pleasure. The Court wrote, somewhat vaguely, that the FTC was constituted to perform “legislative and judicial” duties and thus could not be viewed exclusively as an arm of the executive branch. [FN34]

      Congress has continued to create agencies and officials that are neither fish nor fowl, and the Court has continued to evaluate them for consistency with the structure of the Constitution.  Thus, in 1989 the U.S. Sentencing Commission dodged the constitutional bullet when the Court found in Mistretta v. United States [FN35] that Congress had neither impermissibly delegated legislative power to the Commission (which was described as an “independent commission in the judicial branch of the United States”) nor violated separation-of-power principles. [FN36] Once again, a practical approach pervades the Court's discussion of both the nondelegation doctrine and the separation-of-powers argument.
      This does not mean that the Court now takes an “anything goes” approach to separation of powers. The majority in Chadha, as noted earlier, found the device of the one-house legislative veto to be incompatible with the constitutional design, but the four separate opinions reveal a deeply felt concern over the appropriate role for the Court in reconciling the modern federal system with the literal assignment of functions found in the constitutional text. [FN37] In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, [FN38] the Court struck down a board of review that Congress created to administer certain aspects of the operation of the two Washington, D.C. area airports on the ground that a board composed of nine members of Congress with veto power over the Airport Authority represented too great a legislative encroachment upon judicial and executive powers, as well as state law. Three Justices dissented from the Court's unwillingness to accept what they called “yet another innovative and otherwise lawful governmental experiment.” [FN39]
      Two other areas where unwritten rules have profoundly affected the current constitutional balance are also worth noting.  Both excited passionate debate thirty years ago, and to varying degrees they have since gained public acquiescence.  I am referring to the ability of the President to refuse to spend funds appropriated by Congress, using the practice known as “impoundment,” and the ability of the President to commit U.S. troops to hostilities without a formal declaration of war by the Congress. With respect to the former, the constitutional question was whether, as part of his duty faithfully to execute the laws, the Chief Executive was required to spend the monies appropriated by Congress in accordance with the governing legislation. Presidents over the years had exercised the authority to refrain from such expenditures when they found it in the country's interest, but when President Richard Nixon took this practice to new heights, controversy erupted. It was resolved for the most part by the Congressional Budget and Impoundment Control Act of 1974, [FN40] Title X of which begins with a disclaimer: “Nothing contained in this Act, or in any amendments made by this Act, shall be construed as . . . asserting or conceding the constitutional powers or limitations of either the Congress or the President.” [FN41] Professor Gerald Gunther refers to the Act as “quasi-constitutional in nature, for it seeks to clarify and define basic relationships among the branches of government.” [FN42] Indeed the Act does seek to do this: It permits the President to defer spending appropriated funds, unless either house of Congress passes a resolution disapproving the deferral; it permits the President to refuse altogether to spend funds for a particular purpose or beyond a fiscal year only with the affirmative concurrence of both houses of Congress.
      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. First, the Congress specifically recognized the power of the President to commit U.S. troops to hostile action without a formal declaration of war in the War Powers Resolution of 1973. [FN43] It provides that not only a declaration of war, but also “specific statutory authorization” or a national emergency created by an attack on the United States is enough to justify the President as Commander-in-Chief to initiate action. Second, 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.
      Perhaps the most important stretch beyond the literal language of the Constitution that affects the structure of the federal government has come in the last decade, in the area of state sovereignty.  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 Supreme Court has found that the Eleventh Amendment provides the answers to these questions, despite the narrowness of its language.  Indeed, the Court has been remarkably frank about the lack of a textual basis for its doctrine in this field.  Justice Anthony Kennedy, for instance, commented in Alden v. Maine [FN44] that the phrase “Eleventh Amendment immunity” was “convenient shorthand but something of a misnomer,” [FN45] because State sovereign immunity “neither derives from nor is limited by the terms of the Eleventh Amendment.” [FN46] To similar effect, Justice Clarence Thomas wrote in Federal Maritime Commission v. South Carolina State Ports Authority [FN47] that “the Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity.” [FN48] For present purposes, I am willing to say “so be it.” The important point is that this vital part of our governmental structure rests on extra-textual constitutional doctrine that delineates the relative power of the central government and the states.
B. Individual Rights
      When we turn from the Constitution's structural provisions to the area of individual rights--the places where the Constitution, as amended, seeks to ensure, as James Madison put it in Federalist No. 10, that “an interested and over-bearing majority” does not trample on “the rules of justice, and the rights of the minor party” [FN49]--we find a similar elaboration of the express text. Even at the time the ratification debates were underway after 1787, it was well recognized that the original Constitution contained very few explicit provisions on this topic. The brief list included the qualified guarantee against suspension of the writ of habeas corpus in Article I, Section 9, Clause 2--suspension only “when in Cases of Rebellion or Invasion the public Safety may require it”; the prohibition in Article I, Section 9, Clause 3 against bills of attainder and ex post facto laws; the guarantee of a jury trial in the place where the crime was committed in Article III, Section 2, Clause 3; and the Privileges and Immunities clause in Article IV, Section 2. The impression the Federalist Papers leave is that the Framers believed that these individual rights did not need to be spelled out, both because of the structural protections they had built into the foundational document and because the constitutions of most states had bills of rights. [FN50]
      As we all know, this point was not ultimately persuasive to the ratifying conventions in the states, and thus we gained a ten-article, Federal Bill of Rights in 1791.  There is no need here to go through an exhaustive review of each Amendment--they are already quite well known.  A few examples are enough to make the point about written versus unwritten understandings.  The First Amendment literally says that “Congress shall make no law” abridging the various freedoms that it enumerates, but it does not say anything about state laws that may have the same effect. (Nor, for that matter, do any of the other Amendments.) The first phrase of the Second Amendment speaks of “a well regulated Militia, being necessary to the security of a free State,” before the Amendment goes on to say anything about a right to keep and bear arms. Are those phrases independent, as the National Rifle Association believes, or are they interlinked, as almost all courts have thought thus far? [FN51] Another kind of interpretive question arises with the Amendments that use broad terms like “unreasonable,” [FN52] “due process of law,” [FN53] “just” compensation, [FN54] “speedy” trial, [FN55] and “excessive” bail and “cruel and unusual” punishment. [FN56] What do those terms mean? Is their meaning constant over time, or does something like “reasonableness” change as society itself changes? Finally, there are the Ninth and Tenth Amendments. Taken together, they certainly seem to indicate that there are some rights that do not reside in any governmental body. Instead, this admittedly undefined set of rights is “retained by the people,” according to the Ninth Amendment, or is “reserved . . . to the people,” under the Tenth Amendment. At a minimum, these texts make it impossible to apply the maxim expressio unius est exclusio alterius (to express one thing is to exclude others) to the preceding articles of the Bill of Rights. Whether they mean anything else in addition is another matter about which, as we like to say in the law, reasonable people have disagreed.
      The Bill of Rights obviously does not exhaust the Constitution's protections for individual rights.  There are, in addition, the three pivotal Civil War Amendments that not only ensured that slavery would be abolished [FN57] and that the right to vote could not be denied on the basis of race, [FN58] but also that the States were forbidden to pass certain kinds of laws: those abridging the privileges and immunities of citizens of the United States (defined in the same Amendment to include every person born in the United States and all persons who become naturalized citizens); laws depriving any person of “life, liberty, or property, without due process of law;” and laws that “deny to any person within [the State's] jurisdiction the equal protection of the laws.” [FN59] All three Amendments also confer upon Congress the right to enforce them by “appropriate legislation.” In addition to the Civil War Amendments, one should add to the list the Nineteenth Amendment, [FN60] guaranteeing that the right to vote shall not be abridged on account of sex; the Twenty-fourth Amendment, [FN61] forbidding poll taxes; and the Twenty-sixth Amendment, [FN62] giving eighteen-year-olds the right to vote.
      Much of the sound and fury that has arisen since World War II over constitutional developments has centered not on judicial elaborations concerning constitutional structure, but instead on judicial elaborations of the meaning of the individual-rights guarantees.  Not very many people outside the legal academy will have passionate feelings about the growth of the administrative state, or the revival of states' rights in the name of the Eleventh Amendment. But they do feel strongly about many of the individual rights I am about to mention, although some excite more attention than others, and some are now seen as so obvious or so mundane that it is hard to recall why they were ever contested.

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