Tipos de Mastectomía

develops between

the world as

described in

terms of the

Constitution’s

ultimate objectives

and the world a

particular decision

helped to create, the

constitutional rule

will change. The

Supreme Court

realized by 1954,

for example, that

the Constitution’s

Equal Protection

Clause could not

tolerate the racially

segregated society

that the Court’s

earlier “separate

but equal” cases

had helped to

establish.

the appointment process likely assures that judges have awareness, through prior experience of the nation’s history and cultural heritage. Those facts, combined with diversity of membership and longevity of service, help to dampen radical swings in the Court’s approach to constitutional problems. Let me provide an example designed to isolate an area where traditional history, language, and precedent do not easily resolve the question—an area of potential subjectivity—and thereby illustrate how some of these constraining factors might work. Consider the 1995 case, U.S. Term Limits v. Thornton.2 _{It focused on the Constitution’s requirements for membership} in the House of Representatives, namely: “No Person shall be a Repre- sentative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” The State of Arkansas enacted a statute that forbade an otherwise eligible candi- date from placing his name on the ballot if he had previously served three two-year terms. Is this “term limit” requirement, adopted by Arkansas voters at a state election, consistent with the federal Constitution? Does the Constitution mean the three requirements it lists—age, citizenship, and residence—to be exclusive, or does it permit a state to add others?

The ordinary “nonsubjective” factors that guide interpretation are in almost perfect balance. The constitutional language, read literally, helps Arkansas a little, for it is negatively phrased (“no one shall be a Repre- sentative who does not . . .”), but one can still read the passage as setting forth an exclusive list. Precedent hurts Arkansas a little, for the Court in an earlier case . . . held that the Constitution’s three qualifications were exclusive; but that case concerned only the constitutional power of the federal Congress, not constitutional limitations on the authority of a state, to add other qualifications. Perhaps a draw. History left the question open. Among the Founding Fathers, Alexander Hamilton wrote that the Con- stitution’s “qualifications . . . are defined and fixed . . . and are unalterable by the legislature.” And James Madison implied agreement by adding that “no qualification of wealth, of birth, of religious faith” could “fetter the judgment of the people.” But Thomas Jefferson said that the Constitution does “not declare . . . that the member shall not be a lunatic, a pauper, a convict . . . or a non-resident of his district; nor does it prohibit to the State the power of declaring these, or any other disqualifications . . . .” Jefferson argues for a nonexclusive reading by asking why the Constitution would forbid the states to disqualify lunatics and convicts, while Madison argues for an exclusive reading by asking why a democratic constitution would permit states to disqualify on the basis of property or class. Another draw. 2 _{514 U.S. 779 (1995).}

The historical practice shows that in 1789 many states set property qualifications for legislators, but only one (Virginia) applied them to fed- eral legislators. It also shows that several states insisted on local district (not just state) residence, but Congress later (with many dissenting voices) found that this kind of state requirement was contrary to the Constitu- tion. Draw again.

Nor do other constitutional provisions answer the question. The Tenth Amendment favors the Arkansas position, for it says that powers “not del- egated to the United States” are “reserved to the States” (or to the people). But the fact that the office in question is a federal office hurts it, for one might expect the federal Constitution to specify the necessary qualifica- tions for a federal office holder. Still close to a draw.

If I am right in stating that the arguments from language, precedent, history, purpose, and structure (set forth in 150 pages of opinions) were close to equipoise, what now could determine the result? Have we reached a zone where a judge simply decides as he wishes—a zone of “subjective preference”? Consider: The question, like most constitutional questions, concerns the allocation of power. Does an individual state have the pow- er to determine qualifications, or does that power rest only in Congress and the States together, acting through constitutional amendment? The Court’s decision would likely have significant consequences in the world: to decide against Arkansas would impose a significant obstacle to any term limits change; to decide for Arkansas would seem likely to lead to sig- nificant change in the makeup and workings of the federal legislature, by increasing turnover dramatically. And it is difficult to predict whether that change would mean more democracy (e.g., by producing legislators who are more closely “in touch” with their “grass roots”) or less democracy (e.g., by making it more difficult for voters to hold individual legislators, or their parties, responsible for what occurs over time).

These consequences, viewed through the lens of the Constitution’s framework, help to generate an answer, albeit one that may vary among different judges. The more one sees the Constitution as providing for stable democratic government over time, the more one sees a state term limits requirement as making a major change (with unforeseeable but certainly important institutional consequences) in the workings of that government, the more one would likely believe that the Constitution intends a struc- tural change of that magnitude to flow only from the widespread durable consensus that must underlie a constitutional amendment. The more one sees in the Constitution’s division of powers an insistence upon the contin- ued influence, power, and authority of the individual states, the more one would likely believe that the Constitution, without amendment, permits a state to impose the additional requirements.

I can understand how a judge’s experience as well as expressions of view in prior opinions, i.e., “footprints,” may be relevant as to which of the two constitutional “elements” or policies just mentioned weighs more heavily in the mind of that particular judge. And I understand that the matter presents a very close question—one on which our Court split five to four (rul- ing against Arkansas). But I find it difficult to characterize the resulting conclusion as unusually “political” or particularly “ideological” or even highly “subjective,” as those terms are normally used. Rather, differences in outcome reflect somewhat different views of the same constitutional frame- work, differences in emphasis perhaps reflecting differences in background or experience that are inevitable, perhaps highly desirable, among judges. . . .

I have tried to put the classical criticisms of judicial review . . . in per- spective. Because the interpretive system I describe is not mechanical but depends upon human judgment, because the constraints I mention only bind to a degree, and because the Court at certain times in its history has gone seriously awry, I cannot deny that the criticisms retain validity—up to a point. Why, then, one might ask, as democratic forms of government have become increasingly prevalent in, for example, Latin America and the former Eastern Bloc, have democratic societies increasingly tried to create independent judiciaries with final, or near final, authority to interpret basic legal documents that guarantee basic rights?

The obvious answer is that these nations increasingly have measured the criticisms against what they see as a need, a need for the protection of democratically structured government and of basic liberties that an inde- pendent judiciary can help to provide. That independent judiciary may protect them by helping gradually to develop among citizens and legis- lators liberty-protecting habits based in part upon their expectation that liberty-infringing laws will turn out not to be laws. And such protec- tion might seem particularly necessary in a new democracy or one with a highly diverse citizenry or sizeable minority groups. That independent judiciary may also protect through the kind of force—ultimately based on habit and expectations—that a court can bring to bear when, faced with a law that clearly violates a constitutional provision, that court says “no.” . . .

Ruth bader Ginsburg1

. . .

While you are the American Constitution Society, your perspective on con- stitutional law should encompass the world. The United States was once virtually alone in exposing laws and official acts to judicial review for con- stitutionality. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred up majorities. National, multinational, and international human rights charters and tribunals today play a key part in a world with increasingly porous borders. My message tonight is simply this: We are the losers if we do not both share our experience with, and learn from others.

That message is hardly original. A prominent jurist put it this way 14 years ago:

For nearly a century and a half, courts in the United States ex- ercising the power of judicial review [for constitutionality] had no precedents to look to save their own, because our courts alone exercised this sort of authority. When many new consti- tutional courts were created after the Second World War, these courts naturally looked to decisions of the Supreme Court of the United States, among other sources, for developing their own law. But now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.2

The speaker was Chief Justice William H. Rehnquist. More recently, Justice O’Connor said: “While ultimately we must bear responsibility for interpreting our own laws, there is much to learn from . . . distinguished

1 _{Ruth Bader Ginsburg, Looking Beyond Our Borders:The Value of a Comparative Perspective}

in Constitutional Adjudication, 22 Yale L. & Pol’y Rev. 329 (2004).

2 _{William H. Rehnquist, Constitutional Courts - Comparative Remarks (1989), in Ger-}

many and Its Basic Law: Past, Present and Future - A German-American Symposium 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993) .

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