Diane Wood, World Federalist or Sovereigntist?

by Peter Spiro

Now that she has the Jeff Rosen seal of approval, the safe money is on Diane Wood to fill David Souter’s seat on the Supreme Court.

Most of us IL types will know that Judge Wood has some strong interests in the area (she has been on the board of editors of the AJIL), but in my case at least it’s a pretty vague awareness. That’s because her focus has been on international commerical subjects (antitrust, in particular) rather than public IL straight up.

So I’ve cast around a little to try to get a fix on where she might stand as an internationalist justice.  In “Regulation in the Single Global Market: From Anarchy to World Federalism?”, 23 Ohio Northern Law Review 297 (1996), she answers the question (surprise!) in the negative.  (Pretty risky, though, to include the term in a lecture title — some people won’t need to read any further.)  For purposes of antitrust regulation, Wood seems to advocate a kind of bottom-up global regulatory networks approach by way of ensuring accountability and legitimacy from the (domestic) ground up.

More interesting is material from a 2004 lecture at NYU, “Our 18th Century Constitution in the 21st Century World,” 80 NYU Law Review 1079 (2005), a piece which is going to get the fine-comb treatment.  It’s living constitution stuff.  For our purposes, the key argument is that it is only through evolving constitutional understandings that US practice conforms with human rights conventions, presented with a decidedly non-internationalist logic:

Of all these conventions, the one with the most general sweep and the one that shows most dramatically how much we depend on our evolving Constitution is the International Covenant on Civil and Political Rights. The Covenant, which currently has 152 State Parties, expressly recognizes [a broad range of rights].

The Declarations and Understandings of the United States quite clearly reserve the right of the United States to derogate from some of these obligations – for instance, the United States has reserved the authority (though certainly not the obligation as the Court’s 2005 decision in Roper v. Simmons has now made clear as a matter of domestic law) to impose the death penalty on a person below the age of 18 – but just as clearly those Declarations and Understandings reflect the assumption that United States law already protects everything to which an express reservation was not made. Accordingly, the United States disavowed any need to create separate private rights of action under the Convention.

While some have bemoaned the Declarations and Understandings because they appear to cabin the United States’ commitment to the Convention, the implication that U.S. law is already doing the job should be seen in a positive light. Nonetheless, the United States cannot support this assertion without relying on the unwritten constitutional protections we have been reviewing. The Constitution does not explicitly mention equal rights of men and women; a right to travel; a right to be free from arbitrary interference with one’s privacy, family, and home; protection of the family; the right to marry; or cultural rights of minority groups. Yet as presently understood, U.S. law affords protection to most, if not all, of these rights as a matter of constitutional law. . . .  If our understanding of our own Constitution were more cramped, we would be forced to admit that there is no secure constitutional foundation in United States law for these international human rights norms. Although one might hope that statutes could be passed that would fill the gap, there is first a question whether Section 5 of the Fourteenth Amendment would suffice as a basis for a nationally enforceable code of human rights. Recall, in this connection, the fate of the Violence Against Women Act in United States v. Morrison and ask whether the understanding of the treaty power expressed in Missouri v. Holland would be enough to support legislation enacting the Covenant’s rights in the eyes of a strict constructionist. In addition, there is always the risk that unpopular minorities might be left behind.

That’s a new trick, seeing RUDs in a positive progressive light!  Note that she dodges the issue of whether the treaty power can pick up where the living constitution leaves off, implicitly questioning the continuing viability of Missouri v. Holland.  What does this all mean?  She’s even more clearly confirmable than one might have thought!


3 Responses

  1. Let’s see here.  The US Senate ratifies a treaty subject to RUDs intended to preserve the nation’s freedom of action and to leave the interpretation of the treaty, insofar as domestically applicable, in American hands – and in the hands of Congress rather than of the courts – declining to create private causes of action under the treaty.  But because the Senate’s RUDs reflect an unspoken assumption that the US is already in compliance, though in many cases by omission rather than by a positive guarantee of rights (e.g. freedom of movement), and because Congress has not made – or perhaps after Morrison cannot make – positive implementing law to fill those voids, then the courts must therefore convert the Constitution into a guaranteur of the treaty – establishing private constitutional causes of action implementing the treaty.

    Frankly, this is perverse.

    In the first place, the Senate’s implicit assumption of present compliance is a very thin reed on which to hang the weight of 14th amendment interpretation.  Such a procedure would be marginally more credible were the courts to give meaningful deference to express congressional statements interpreting the 14th.  They don’t – which unmasks Wood’s argument as a power-grab. 

    In the second place, there is nothing deficient about complying by omitting to offend.

    Finally, for the courts to use RUDs specifically intended to preserve sovereign democratic legislative power as a lever by which to subvert such power is to do violence to the conditions on which the Senate based its assent to the treaty.  It is to tread upon the Constitution by robbing the Senate of the power the Constitution reposes in it.

    To do this would be the height of judicial arrogance.  It would be to lose all sense that the law derives its power from democratic enactment and consent.  It would be to take the ideological preferences of a few – however noble – and impose them on the nation by judicial fiat.

    No one who proposes such a usurpation is fit to sit as justice on the Supreme Court of the United States.

  2. I really shouldn’t post at nearly 2 in the morning. The excerpt of Wood’s lecture can be interpreted uncharitably, as I did above, as a program of action. It can also be interpreted more charitably – and probably more accurately – as a simple celebration of the progress of living constitutionalism thus far. Not “because the Senate has implied that we conform, we have license to change the Constitution,” but rather, “because we have changed the Constitution, the Senate can rightly claim that we conform.”

    Ah well, go to bed earlier next time.

  3. Within the same article, Wood makes this statement in regard to interpreting “cruel and unusual.” I think that this is at least as telling about her views toward IL.

    “The Court also noted that the United States was “the only country in the world that continues to give official sanction to the juvenile death penalty,” [FN133] even as it carefully pointed out that this fact was “not controlling our outcome.” [FN134] In doing so, the Court appropriately chose to enrich its understanding of the issue by reviewing international practice, acknowledging implicitly that the American people are indeed part of the broader human community and at least presumptively share its core values.” (pg. 1101).

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