International Law vs. the American ConstitutionIssue: Spring 1999
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.