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>> 107 4 Our Eighteenth-Century Constitution in the Twenty-First-Century World Diane P. Wood Introduction 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 To be old is all too often to be out of date and ready for disposal.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 its 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 This lecture was delivered on October 18, 2004, and appeared in 80 N.Y.U. L. Rev. 1079 (2005). 108 > 109 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;3 the Senate tries all impeachments;4 before a bill becomes law, the President must sign it, or a supermajority of Congress must pass it over his veto;5 the President’s appointment and treaty powers are limited by the need to obtain the Senate’s advice and consent;6 and the appellate jurisdiction of the Supreme Court is subject to “such Exceptions, and . . . Regulations as the Congress shall make.”7 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.8 There are additional structural rules found in the Constitution and its Amendments. Congress’s power to tax was the subject of the Sixteenth Amendment;9 the Seventeenth Amendment changed the way in which senators are chosen;10 and the Twenty-Seventh Amendment governs laws affecting the compensation of members of Congress.11 The text of the Constitution also contains rules about federal elections in the Twelfth Amendment,12 the Fourteenth Amendment,13 the Twentieth Amendment (which sets the dates from which the terms of the President and the Congress run),14 the Twenty-Second Amendment (which limits a person to two terms as President),15 and the Twenty-Fifth Amendment (which outlines what happens upon the disability or death of the President).16 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 110 > 111 formulation.”26 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...

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