When major programs of President Roosevelt's New Deal were blocked by
the Supreme Court during the 1930s, Roosevelt insisted that the Court
must learn to apply a more "modern" view of the Constitution. Soon
enough, a reshaped Court did adopt a much more permissive approach
and scholars who liked the result spoke of a "living Constitution."
We heard more about "evolving standards" and a "living Constitution"
from defenders of judicial activism in the 1960s and 1970s. It seemed
to offer the prestige of a higher law without the inconvenience of a
fixed law. But sometimes we really want a constitution to have fixed
and reliable limits. So, for example, many of those who once praised
the "living Constitution" have, in recent months, invoked with great
solemnity the "law" of impeachment, which, they say, was "fixed" by
the Framers of the Constitution in the eighteenth century.
If nothing else, America's months of debate about impeachment remind
us that many Americans care deeply about "the rule of law"--and
disagree among themselves on what it means. Even those most devoted
to defending President Clinton have appealed to arcane legal
arguments about the proper application of the Constitution's
provisions on impeachment.
But our own law may not be the only law that determines what happens
in this country. At the very moment when Americans were so
preoccupied with debates about the meaning of perjury or the
requirements for impeachment, a series of events around the world
offered a foretaste of what may become the next subject of heated
legal debate for the United States: the proper reach of international
law.
