Cass Sunstein Responds to "Constitution in Exile" Post:
Last week I wrote a post "Is the 'Constitution in Exile' A Myth?," questioning claims that an influential block of conservatives have an agenda for the courts that they themselves describe as restoring the "Constitution in Exile." I noted that I could only find one use of the phrase "Constitution in Exile" by a conservative — a single comment buried in a 1995 book review by Judge Douglas Ginsburg. I asked whether the phrase "Constitution in Exile" was something that conservatives actually used, or rather was merely a phrase that critics (most notably Cass Sunstein) have used to describe what they contend is a growing conservative legal movement.

  Cass Sunstein e-mailed me a response, which he has graciously agreed to let me post:
  As you say, the phrase comes from Chief Judge Ginsburg of the DC Circuit, in a piece in Regulation magazine. Without using the phrase, he also spells out his argument in some detail in a remarkable piece on constitutionalism in the Supreme Court Economic Review, from the Cato Institute. This piece has been given as a lecture at several places, including the University of Chicago Law School, where a packed room gave it respectful attention.
  A glimpse of the argument: Judge Ginsburg writes that judges were faithful to the Constitution for most of the nation's history - from the founding, in fact, through the first third of the twentieth century. But sometime in the 1930s, "the wheels began to come off." His strongest complaint is about the Supreme Court's decision, in 1937, to uphold the National Labor Relations Act. Judge Ginsburg objects that this is "loose reasoning" and "a stark break from the Court's precedent." In his view, the Court's acceptance of the National Labor Relations Act is not merely "extreme"; it is also "illustrative."
  Randy Barnett's powerful book, Restoring the Lost Constitution, is definitely in the same general vein (consider the title!); so too is some of the work of my colleague Richard Epstein, especially but not only on the commerce power. So too for much conservative writing on the nondelegation doctrine. Justice Thomas writes significant opinions that support the general goal (restoring the lost constitution, or what Judge Ginsburg calls the Constitution in Exile), as of course you know; and Scalia is often with him.
  The idea of the lost Constitution, or the Constitution in Exile, or the original constitution, is very prominent in the conservative community. In fact the idea of originalism goes hand-in-hand, for many people, with the idea of a Constitution in Exile, whether or not that phrase is used. I think the Constitution in Exile phrase is especially evocative, and I admire Judge Ginsburg a great deal (despite major disagreements on this point). But the goal is what's important, not the specific term, and it seems to me that we've all witnessed the rise of that goal, especially in the last decade or so, with the increasing assertion of a certain form of originalism.
  I have two responses, one narrow and the other broader. The narrow point is that I understand Sunstein to agree with my first post that there is no evidence that a conservative has used the phrase "Constitution in Exile" outside of a single reference in a 1995 book review. On this point, my apologies to Professor Sunstein if I simply misread his prior writings; I had understood Sunstein to be claiming that conservatives are themselves using the phrase "the Constitution in Exile" to describe their legal goals. To the extent that we are in agreement that the term is primarily Sunstein's, and has not been used by conservatives outside of a 1995 book review — and even then, apparently only as a descriptive matter, not as a normative one — then that addresses the topic of my prior post. This is an important point of consensus, I think: we can all agree that there is no evidence that conservatives refer to their agenda for the courts as restoring a Constitution in Exile.

  Now, let's turn to the broader question, one that I did not address in my first post: terminology aside, is there a conservative movement to restore a pre-New Deal constitution? Unfortunately, I am not the best person to answer this: I am not a constitutional theorist, don't really follow the literature, and don't teach constitutional law. Nor do I know how you measure when a certain amount of writing or scholarship amounts to a "movement." If there is a conservative movement to restore a constitution in exile, however, it is news to me. I can think of a handful of conservative law professors who have some pretty far-out views about how to reshape constitutional law, but I tend to think that this says more about constitutional theory in legal academia today than it does about any "movement" in conservative legal circles. Nor do I see how their claims amount to wanting wholesale restoration of the pre-New Deal constitution. Perhaps part of the problem is that I don't see the direct connection between originalism and restoring a constitution in exile. I see the former as a mode of constitutional interpretation, and one that leaves open a reconciliation with stare decisis. The latter apparently would dismiss stare decisis and attempt to reconstruct a very particular constitutional order.

  Some readers will agree with Sunstein that there is in fact a conservative constitution-in-exile movement. But if you take this position, don't you have to agree that there is a liberal constitution-in-exile movement, too? Here's a thought experiment to show you what I mean. Let's imagine Cass Sunstein has a cousin who is identical to Sunstein in every way except one: he is a conservative. This conservative version of Sunstein - let's call him Moonstein - could write something like this:
  There is increasing talk among liberals of what is being called "the Constitution in Exile" — the Constitution of the 1960s, Justice Brennan's Constitution. Their target is Ronald Reagan and the Bushes, who they claim pushed a false Constitutional vision designed to strip the Bill of Rights of its essential guarantees and emphasize property rights over human rights. They have set as their goal the restoration of the progressive Constitution forced into exile by by a string of Republican presidencies starting in 1968.
  The organizing strategy behind the liberal Constitution in Exile movement was explained by Professor Mark Graber in a 2002 law review article, Rethinking Equal Protection in Dark Times, 4 U. Pa. J. Const. L. 314 (2002). Graber urged his fellow liberals to plot for the return of the progressive "constitution in exile." He wrote: "Progressive arguments . . . are best understood as constructing shadow constitutions or constitutions-in-exile. Parties out of power in many nations form shadow cabinets. These bodies consist of the persons who might hold various executive offices when that coalition gains control of the government. The American equivalent apparently is the shadow constitution. Scholars out of power in the United States author various shadow constitutions that detail the constitutional meanings that might become the fundamental law of the land should the author's preferred coalition gain control of the federal government."
  Restoring the liberal Constutitution in Exile has become an increasingly dominant theme of progressive legal thinkers. For example, a collection of some of the nation's most prominent progressive legal minds (including Cass Sunstein) will be meeting at Yale Law School in the spring to develop "a shared vision of what, at least broadly speaking, that Constitution in Exile is, so that we can support and work for its realization." A website and blog set up for the conference reveals the agenda. For example, Bruce Ackerman sets as one of the more modest items on the agenda to "[r]oot out the federalism decisions since Lopez, and return to the status quo, circa 1994. Root all of them out, not some of them." His more "transformative" agenda would include "overrul[ing the] Slaughterhouse [cases] and mak[ing] the [Privileges and Immunities] Clause the basis for fundamental positive rights of citizenship." Other scholars at the conference urge a new Constitution entirely. One scholar urges that the Constitution must be reconceived to serve "a basic purpose: the protection of human dignity." Another contends that the law must "revisit both the 14/19th amendments and the general welfare clauses so as to take on the deep inequalities of the contemporary social order inside the United States, to reconceive the meaning of equality."
  A fair response to Moonstein might note that Moonstein is cherry-picking a few comments and imagining that these professors have real influence in order to create the impression of a major movement afoot. The fact that a few law professors are arguing in favor of major constitutional change shouldn't be terribly surprising: that's what constitutional law professors do, right? My sense is that the same criticism applies to Sunstein and claims of a conservative constitution-in-exile movement.

  I have enabled comments. Please, civil and respectful comments only.

Ron Coleman (mail) (www):
Your conclusion is essentially right, I think, because yes -- law professors are paid to diddle around with stuff like this and essentially build castles in the sky. What do wethink what Richard Epstein, for example, has been doing since forever? Repealing the New Deal.

These sorts of fantasies are just totally removed from the way cases are decided.
1.3.2005 2:52pm
Strange Doctrines (mail) (www):
Two things. First, Justice Thomas explicitly states that the Constitution means the same thing it did in 1789, and he is considered a model judge by mainstream conservatives. This suggests an ambient restorationism among conservatives that doesn't find a ready analogy in contemporary liberal attitutdes.

Second, the point of conservative originalism is to "restore" the "timeless meaning" the constitution it "always had." Imputing such a project to liberals with respect to Warren Era Meaning is incoherent. Warren Court holdings were neither timeless nor original. They simply made for a good starting point.
1.3.2005 3:11pm
Rob Read (mail):
It is not a question of Property Rights v Human Rights more correctly it should be property rights v human entitlements.

The loves of the coerced collectivists i.e. State Schools, Benefits and retirements are all paid for by forcing others to work for things they will not personally benefit from. These cannot be described as Rights.
1.3.2005 3:19pm
Trent England (mail) (www):
Cass Sunstein's remarks are unfortunately representative of a corrosive theme in American politics: ignore the substance in favor of inventing and attacking a "conspiracy." I experienced this first hand in a debate with a representative of the Center for American Progress. It was pathetic to hear his Soros-funded rant about Coors-this and Amway-that, but many on that side seem unwilling or unable to engage beyond this kind of acidic frivolity.
1.3.2005 3:34pm
Ron Coleman (mail) (www):
SD, I don't know what "ambient restorationism" really means (I mean I understand the words but I don't really know what to do with them). Volokh was saying what really is the difference between "restoring" circa 1789 --- which, according to the argument, is the same as restoring cira 1930 -- and "restoring" circa 1992? Maybe your second point clarifies what you mean by "ambient" -- you think it's incoherent to call it a "restoration" to recreate a relatively recent trend or moment in constitutional jurisprudential time (if you will), and I think Volokh is merely asking you to suspend the "ambience" or the elegance of the analogy, and still consider if it is not still essentially the same thing in terms of the "shadow constitution concept.
1.3.2005 3:35pm
Alan Christ:
Kerr's first point--that conservatives don't generally use the phrase "constitution in exile" strikes me as correct but trivial. This issue is clearly about more than terminology.

Kerr's second point--that there is no "constitution in exile" movement-- is more interesting. As a point about the conservative movement, I'll take him at his word that there is no specific subset of that movement devoted to the restoration of a particular vision of the constitution. But even if this is true in a formal sense--ie there is no division of the federalist society focused on this specific agenda--that doesn't mean the idea lacks force more generally. I'm not a member of any particular movement--conservative, liberal, or otherwise--nor do I want to be. however, I read about and watch them all to an extent and I think can be said at a high level of generality that conservative legal thinkers tend to believe that the New Deal and its accompanying jurisprudence were misguided. The DC Circuit's conservatives in particular are pretty unabashed in their hostility toward the administrative state, best exemplified by their audacious but ultimately failed effort to revive the nondelegation doctrine in ATA a few years back.

Can the same thing be said to some extent of progressive legal writers? Yeah, probably. I suppose most of those folks would not be fans of the Court's recent federalism and sovereign immunity cases, so if you can say that any criticism of extant constitutional law amounts to a desire to "restore a lost constitution" then there are people doing that all over the place. But I think that robs the phrase of meaning. What distinguishes the conservative objection to the new deal and its related jurisprudence is that the new deal, like it or hate it, was a sea change in constitutional interpretation that ushered in fundamental changes in american governance (ie gave birth to the regulatory state). Aside from the Civil War and the American Revolution, there aren't any other constitutional moments (pace Ackerman) on that order of magnitude. Thus it might make sense that an intellectual movement that viewed the New Deal in a negative light would devote itself to "restoring" the constitution to its state before that moment.

Final point--I don't see why Kerr objects to Sunstein's characterization. My impression has always been that conservative legal thought is much more organized and agenda-oriented than progressive legal thought, and if right-leaning law profs focus on reintroducing an understanding of the constitution that existed at a particular prior time in US history, then fair enough. It's certainly a reasonable intellectual claim and not one that anyone should feel like they have to run from. I suspect that if a conservative legal thinker had written a piece characterizing his or her own movement in this way, no V-conspirators would have made a peep.
1.3.2005 3:45pm
Ron Coleman (mail) (www):
Alan, thanks for correcting me -- this wasn't Volokh's post, it was Orin Kerr's.

I think you have to consider how lively the conspiracy orientation on the left is and you will appreciate why the subversive-sounding, Fifth Column of the Right "ambience" of "Constitution in Exile" raises a flag for Kerr.
1.3.2005 4:20pm
Howard Owens (mail) (www):
I realize this is a scholarly discussion, so my additions may be a little out of place, but this all sounds a lot to me like what's happening more in the lay legal community (to coin a phrase).

Ken Layne has done some nice posts on the Restoration Movement, if you can find them on his reconfigured site or through Google.

Also, it would be worth looking at David Barton's Wall Builders site, as well as googling David Barton and Christian Reconstructionism.

I've tracked the Christian right wing for more than a decade, and there repeated propoganda about strict constructionism and the constitution meaning what it meant in 1789, etc. To what extent this has creeped into serious scholarship is beyond my expertise, but it is certainly a political force.
1.3.2005 4:50pm
Richard Heddleson (mail):
These sorts of fantasies are just totally removed from the way cases are decided.

Is that also true of Warren, Brandeis, The Right to Privacy and Griswold/Roe v. Wade?
1.3.2005 5:20pm
Eric Shen (mail):
The analogy to Moonstein works only if you accept the premise that originalism and the CiE movement are differences in kind, not degree. The criticism of "cherry-picking" the comments of constitutional theorists might apply to Sunstein only in such a sense.

But Sunstein clearly does not hold that view. Rather, he constructs a fairly compelling picture of a major position held by conservatives on the issue of constitutional jurisprudence. The examples of Justice Thomas (an influential non-constitutional law professor) and Richard Epstein (a law professor with real, not imagined, influence on the issues) point to this.

Sunstein considers the CiE and originalist movements to be the same movement, and, if regarded as such, he is correct to point out that it is a substantial idea of the conservative position on the Constitution. The argument Kerr offers against this seems lacking. Kerr makes a distinction through the treatment of stare decisis by the two "groups." But such a distinction is threadbare and is hardly a compelling one. That's like distinguishing between George Wallace and Strom Thurmond because Wallace was a governor and Thurmond was a senator. They were both still obviously part of a movement that favored segregation. Sunstein's point is that of the "idea" of a lost/exiled/original constitution, and clearly all three of those are iterations on the same idea.

Kerr's argument with Moonstein also seems extraneous: "If you take this position, don't you have to agree that there is a liberal constitution-in-exile movement?"

First, one does not have to agree, because Sunstein's position is markedly different from Moonstein's in both character and evidence, as noted above. Second, even if one does "have to agree," so what? Pointing out 'hypocrisy' doesn't actually address the argument at hand.
1.3.2005 5:31pm
Richard Samp (mail):
The phrase "constitution in exile" connotes an unwillingness to accept a particular constitutional doctrine as legitimate law -- as opposed to a mere disagreement with the doctrine. Those who believe in stare decisis as an important aspect of constitutional law are far less likely to view themselves as champions of a "constitution in exile" than those who do not, because over time they are likely to accept, as established law, decisions with which they might have disagreed when initially rendered.

My impression is that most conservatives judges, attorneys, and legal academics -- and certainly most of those who attend Federalist Society functions -- have long since come to terms with most 1930's-era interpretations of the Commerce Clause and do not seek a repeal of the New Deal. That impression was strengthened by Ashcroft v. Raisch, the medical marijuana case pending in the Supreme Court. I would be surprised if the Respondent gets more than 1 vote in that case, and Justice Scalia seemed fully prepared to invoke Wickard v. Filburn as the cornerstone of his vote to reverse. Judge Reinhart's authorship of the Ninth Circuit's decision in Raisch well illustrates that most of the Respondent's support is coming from those opposed to federal drug laws, rather than those seeking to roll back the New Deal.

In general, conservatives have been far more willing to incorporate stare decisis into their judicial philosophy than have liberals. For example, with each new federalism decision, the four liberals on the Court have made it quite clear that the passage of years has not made them any less willing to chuck the entire line of decisions as soon as they can get a fifth, like-minded justice appointed to the Court. It is that view of constitutional law that can accurately be dubbed a "constitution in exile" approach.
1.3.2005 5:35pm
Ron Coleman (mail) (www):

These sorts of fantasies are just totally removed from the way cases are decided.

Is that also true of Warren, Brandeis, The Right to Privacy and Griswold/Roe v. Wade?

No. They are, of course, the exceptions that prove the rule, if anything. And in fact what they demonstrate, largely, is incrementalism -- not wholesale shifts in jurisprudence per the "exile" scenario but Griswold --> Roe v. Wade --> Lawrence v. Texas.
1.3.2005 5:56pm
Thomas (mail):
Sunstein suggests that the common thread running from Ginsburg to Barnett to Epstein to Thomas and Scalia is that they share a "certain form of originalism", but no one familiar with their works could really think that they share that. The very idea that Scalia and Epstein have their "certain form of originalism" in common!

So I'll propose something else:

Ginsburg is a lecturer at UofC, every other year, and also a graduate. Epstein also teaches there, and has for a generation. Scalia also once taught there. And Thomas's clerks are overwhelmingly from there.

Barnett doesn't have much of a connection. But I did once attend a lecture of his at that fine institution, and I know he once lived in Chicago. So perhaps that's enough to get him in on the conspiracy. And, of course, Sunstein smoked out the conspiracy first, because he's surrounded by it.
1.3.2005 6:13pm
David Mercer (mail):
Here's the 'elevator pitch' version of the conservative argument against the New Deal (in question form): How come it was universally seen that the Constitution required an Amendment to prohibit alcohol on a national basis, but doesn't require such for any other drugs?

I think that the drug laws provide the clearest, stark illustration of how pre- and post-New Deal American govt. is a fundamentally different thing, and hence get drawn upon by both anti-Drug War activists and Originalist conservatives.
1.3.2005 6:30pm
Greedy Clerk (mail):
Ron Coleman: "I think you have to consider how lively the conspiracy orientation on the left is . . ."

I would have to correct you by saying that "conspiracy orientation" is lively on the far left. Second, "conspiracy orientation" is also lively on the far right --- perhaps you have heard of Pat Buchanan (e.g. his constant reference to some sort of "new-conservative zionist" (read jewish) conspiracy to get us in the war in Iraq). And finally, there are plenty of little conspiracy theories that some in the mainstream right were peddling not long ago --- remember Atta and Iraqis having met in Prague, the clear implications that Iraq had helped conspire with Al Qaeda to plan Sept. 11. This little conspiracy theory was used in part by the Vice President of the United States to justify the invasion of a foreign country.

Point being this: no side has a monopoly on crazy conspiracy theories.
1.3.2005 6:45pm
Greedy Clerk (mail):
I don't get this whole argument by conservatives re the Commerce Clause anyway: From 1789 until about 1900, I don't think the Supreme Court ever struck down a congressional statute as violative of the Commerce Clause (and if I'm wrong, I imagine it could have only happened once or twice). So, arguably, it was Roosevelt and his New Deal Justices who were trying, and ultimately successful, in restoring a sort-of "lost" constitution that had been in exile during a roughly 35-year period.

Now, the fact that the Supreme Court never struck down Congressional enactments as violative of the Commerce Clause during the first hundred or so years of the Republic may be evidence also of the fact that Congress did not attempt to exercise such broad power under the clause. But accepting this argument (which I think I do), this only means that there were two camps which emerged on how to interpret whether Congress had such broad power. One camp was somewhat successful and able to get very slim majorities in favor of a narrow interpretation of the Commerce Clause for 35 years. A second camp took a broad view of Congressional power, and has been able to get almost unanimous consent from the Justices in the last seventy or so years. Even the recent federalist decisions do not take anything close to such a narrow view of the commerce clause as did the pre-New Deal Court. As I read those decisions, only Clarence Thomas would advocate anything even close to such a view. So the argument really is not over some "lost" constitution or "constitution in exile" but an argument over two very reasonable interpretations of the Congressional Power under the Commerce Clause that emerged once Congress started attempting to exercise such broad power. The overwhelming weight of Justices and scholars seem to have endorsed the broad view rather than the narrow view since Congress started exercising its power. So, I would argue that persons such as Justice Thomas are not trying to recreate a "lost" constitution, but a repudiated (rightly or wrongly) view of the constitution that was only en vogue by a very narrow majority for about thirty years.
1.3.2005 6:57pm
Anderson (mail) (www):
David Mercer: I'm afraid the answer is prosaic in the extreme. Drugs are used by "those other people" so it's okay for Congress to outlaw them. Booze, on the other hand, is used by otherwise decent, godfearing folk, so it's much more disruptive to ban it, and thus an amendment appears needed.

If anyone has a more historically based answer to replace my glib guess, please post it!
1.3.2005 7:12pm
Casey at the bat:
Sunstein has two responses to the Moonstein example, I think. The first is his view (agree with it or not) that there is much weaker concensus among liberals regarding what a new constitution would look like, particularly among those "liberals" who happen to wear robes. This is an empirical claim, of course, but for those who agree with it, the prospect of a liberal "c in e" seems far more remote. Apart from this debate, there is also the issue of stare decisis. In whatever terms it is made, a call to return to a "C in E" seems to repudiate *any* committment to stare decisis principles. It would be difficult to justify, say, striking down Title VII and Title IX under SD yet both of these are commonly said to be a part of the "c in e" agenda. While a call to return to the warren court era certainly strikes some as an "activist" position, it does not in the same way require abandoning all of your SD principles. If nothing else, the "c in e" theory looks back to a much earlier time in Constitutional law — so far back that it is almost impossible to reconcile with, say, the factors listed by O'Connor in Casey — and to a jurisprudence that has been more squarely rejected under current doctrine. This difference, it seems to me, destroys the symmetry between the Moonstein and the Sunstein claims. Of course, whether the warren court itself had any regard for stare decisis is a separate debate...
1.3.2005 7:22pm
The very notion of "originalism" implies a constitution stripped of the judicial gloss and hence very different from ours today. The commerce clause is only part of the package, however. The bigger pieces are the notions of a much more expansive reading of the Executive power in making binding interpretations of the Constitution, a narrow reading of the power of Congress to spend "for the general welfare", an expansive reading of the Second Amendment, a reading of the 11th Amendment that gives states not just forum privileges but actual sovereign immunity from generally applicable federal laws, and most importantly, doubts about the "incorporation doctrine" that brought most of the 1st, 4th, 5th, 6th and 8th Amendments to the states via the 14th Amendment due process clause. Incorporation is settled law, but it is at the core of what conservatives see as wrong with the current constitutional jurisprudence. The Federalist Society and the Chicago School conservative legal scholars are notable for bringing these ideas from "crackpot" to "respectable", laying groundwork for the distant possibility that they may someday be accepted.

The legal justification for the "enemy combatant" doctrines of the current adminsitration have a similar character. Six years ago, the vast majority of legal scholars would have called the idea that an unarmed U.S. citizen could be detained without trial in Chicago O'Hare Airport and detained indefinitely on the President's word alone a crackpot idea. But, because conservative "constitutional in exile" legal scholars spelled out their ideas in journal articles, the doctrine was there ready for the Justice Department to seize upon when the time came. The fact that the courts don't think to much of the doctrine doesn't matter much. It has bought the administration several years of leeway while it litgates its position, and the same is likely true of other ideas that may seem like they come from left field now.
1.3.2005 7:45pm
Brett Bellmore (mail):
From 1789 until about 1900, I don't think the Supreme Court ever struck down a congressional statute as violative of the Commerce Clause...

Well, it's kind of tough to strike down violations of a constitutional provision, when Congress isn't violating it. Congressmen didn't always take the position that they should just pass any old laws they wanted to, and leave enforcing the Constitution up to the courts; They used to understand that they had an independent obligation to obey the Constitution. Something about an oath of office, I think...
1.3.2005 8:03pm
Ron Coleman (mail) (www):
Clerk wrote:

The overwhelming weight of Justices and scholars seem to have endorsed the broad view rather than the narrow view since Congress started exercising its power.

But I think the argument here can only be about one of two things: (1) What does the Constitution mean "really"? and (2) Would a consensus on the left about "a Constitution in exile" be as readily identified with the overtones of conspiracy as Sunstein has perceived on the right?

The "overwhelming weight of Justices and scholars" would seem to speak very little to either these, but rather to the ebb and flow of political power and fashion.

By the way, cannot agree with your point that "the right is as bad as the left with conspiracy." Or perhaps I should say, you're right, there are fringes on both sides -- but the fringe on the left is a lot wider. Thus Pat Buchanan is a marginal figure in the GOP today, whereas Michael Moore sat on Jimmy Carter's lap at the Democrat's convention. But we digress.
1.3.2005 9:14pm
Greedy Clerk (mail):
Brett: "Well, it's kind of tough to strike down violations of a constitutional provision, when Congress isn't violating it."

Please re-read my post, I addressed your precise point. Thank you very much.

Consistent with your view that Congressmen pass laws in obeisance with their oath, I assume that those same Congressman did the same when passing broad Commerce Clause legislation. Unless you can somehow point me to some authority that all of a sudden at the turn of the century, Congressmen stopped taking their oath of office, or stopped believing in it, your argument is DOA. Moreover, any serious historian would know that Congress only began using broad powers at this time because of changed conditions due mostly to the industrial revolution and they believed that changed world conditions called for the use of it --- there was no change in Congress that led them to simply forget about their oaths.

Again, I commend you to my previous post, which discusses that there are two reasonable theories of the construction fo the Commerce Clause, and one has won out.
1.3.2005 9:46pm
Greedy Clerk (mail):
"Thus Pat Buchanan is a marginal figure in the GOP today, whereas Michael Moore sat on Jimmy Carter's lap at the Democrat's convention."

I do not think this argument is really worthwhile, but Moore was invited to the convention by USAToday. Buchannan, if you will recall, won the Republican Primary in 1996, was a major speaker at the RNC Convention in 1992, and was a substantial force in presidential primaries in the party through the 90's.

As to your point about the changing weight of political forces, I again disagree. As somewhat of a conservative (in a classical sense), I tend to rely on the collective wisdom of our judicial forefathers who, for the most part, have taken a broad view of the Commerce Clause. And I include Scalia, Rehnquist, O'Connor and Kennedy in this as their views in the recent Commerce Clause cases still support a very broad reading of that Clause.

As for what the Constitution "means" really, no one could possibly answer that question. I otherwise would defer to Charles Evan Hughes' famous hyperbole on the subject --- it means what the Supreme Court says it means.

Perhaps I am missing something, but I do not sense that broad, and evil, "conspiracy" undertones to Sunstein's argument.
1.3.2005 9:53pm
Thomas (mail):
Greedy--Moore was invited to the RNC by USAToday, not to the DNC.

Since you seem familiar with Scalia's views on the Commerce Clause, could you explain how they're similar to Barnett's and to Thomas's and to Ginsburg's and to Epstein's? Sunstein has grouped these together, and you think it's appropriate, so, please, explain.
1.3.2005 10:21pm
Ron Coleman (mail) (www):

Buchannan, if you will recall, won the Republican Primary in 1996, was a major speaker at the RNC Convention in 1992, and was a substantial force in presidential primaries in the party through the 90's.

I can recall, if I really, really squint. In fact Pat Buchanan never won "the Republican Primary" and has been on the margin for well over ten years, having even been kicked off National Review on suspicion of antisemitism. Yes, they say it was a great speech in '92 -- but 12 years is a long, long time in the political wilderness. Buchanan was never a "substantial force" in Republican politics on a national level
1.3.2005 11:23pm
jaed (mail) (www):
USA Today sent Moore as a reporter to the DNC, but USA Today did not place him in the presidential box beside Jimmy Carter. (I assume you have seen the photograph in question.)
1.4.2005 12:12am
Jason McCullough (mail) (www):

First hit is an entire conference devoted to the concept of a constitution in exile.

As this post here points out, apparently Ginsburg has been pushing this for a while.

"Now, let's turn to the broader question, one that I did not address in my first post: terminology aside, is there a conservative movement to restore a pre-New Deal constitution?"

This is more-or-less explicitly Grover Norquist's position, among others; all very wired-in individuals.
1.4.2005 1:44am
SupremacyClaus (mail):
One cannot exile a corpse. The Constitution was hunted down and assassinated in Marbury, 1803, not exiled in 1937.

Stare decisis violates Article I Section I. Congress does not reverse this blunder because it needs its stalking horse, the Supreme Court, to evade hard decisions. One outcome of this game, Dred Scott v. Sanford, 1857, caused the Civil War.

The error meter has been whirring ever since.
1.4.2005 2:32am
Jonathan H. Adler (mail) (www):
There is a small facutal error in Sunstein's post. The article by Judge Ginsburg to which he refers did not appear in the Supreme Court Economic Review, but the Cato Supreme Court Review. The text is available here. Moreover, the SCER is not published by Cato. Rather, it is edited at the Law and Economics Center at George Mason University and and published by the University of Chicago Press.
1.4.2005 9:12am
Kevin Baker (mail) (www):
I'm neither a lawyer nor a law professor, nor do I play one on TV, but I ascribe to the belief that the Constitution, and especially the Bill of Rights, has been gutted in slow motion begining almost at ratification. The problem with stare decisis is that bad decisions engender more bad decisions, and there seems no way to overcome this.

I've written a series of posts under the general heading of "The Courts Will Not Save Us" on this topic.

Take, for example, my personal crusade for the right to arms. I live in Arizona where the 9th Circuit tells me I don't have one - it's not an individual right. This is based on their Hickman v. Block decision, but several justices - specifically including Alex Kozinski - have stated repeatedly in several dissents that the right is an individual one, and that Hickman is a decision in error. Unfortunately, these justices are heavily outnumbered.

However, in the recent U.S. v. Stewart decision, Kozinski cited the 9th Circuit's Silviera v. Lockyer decision, (predicated on Hickman and to which he wrote an eloquent dissent) as precedent to deny the 2nd protects an individual right, stating:
Finally, Stewart argues that the Second Amendment guarantees him the right to possess machineguns, as well as the right to possess firearms generally despite his former felony conviction - as charged in count one of Stewart’s indictment. We have held that the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002). Thus, there is no Second Amendment limitation on “legislation regulating or prohibiting the possession or use of firearms.” Id. Stewart's Second Amendment argument must therefore fail.
Then in the denial to rehear en banc the Nordyke v. King case, Kozinski voted with the majority. Even though he supported the eloquent dissent of justice Jay Gould, he did not join it, stating:
Because I believe prudential considerations militate against revisiting the issue quite so soon, I voted against taking this case en banc and so, regretfully, cannot join Judge Gould's bulls-eye dissent.
This, to me illustrates the severe problem with stare decisis, because as another blogger put it:
I think that the (unfortunate) bottom line is that the future of our freedom ultimately rests with the court's willingness to periodically reexamine the law. Lawmakers, and law enforcers, will always push the limits, and they will always win occasional gains. If the court is unwilling to revisit these issues over time and correct the damage done, then it's "game over" no matter what we do. This makes it a little easier for me to accept changes in the law where the cost is low and the benefits are significant. If I can't count on an occasional review, then the game is already lost.
Justice Kozinski's vote against an en banc rehearing based on the Silveira decision says to me that the court will NOT "periodically revisit the law," and that as I wrote a while back:
(T)he courts will often bow, as Kozinski does here, to precedent they abhor. We depend upon the honor and intellectual honesty of the judges who make up the Justice system, yet it seems that those who are truly honest and honorable are outnumbered by those who are "willing to bury language that is incontrovertibly there." The honest and honorable ones abide, under the rule of law, by precedent that is otherwise insupportable. The middling honest ones, the ones Justice Brandeis labled as "men of zeal, well-meaning but without understanding" "build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text." And those decisions stand, without review, periodic or otherwise, to serve as the next step down the road to Hell.
I, for one, think that stare decisis is the mechanism that has lead to the gutting of the Constitution and the Bill of Rights, and only through an "original meaning" (kudos to Randy Barnett for that phrasing) review of older, bad decisions and their subsequent fallout can we restore what we have lost.

We're suffering from 225+ years of entropy. It needs to be reversed before the Constitution dissolves into chaos.
1.4.2005 10:01pm
Wince and Nod (mail) (www):
IANAL, but I like lawyers for the same reasons I like guns, that is, they are useful for protecting property, life and rights, and I think everyone should have at least one. I have never tried using a lawyer at the range. Are they accurate? :)

I'd like a Constitutional Amendment requiring the courts to interpret the Constitution according to the original public meaning of each portion at the time of its ratification. In order to reduce the potential ensuing chaos it should also allow the courts, when declaring something unconstitutional due to the Feds usurping a state power, to declare the unconstitutional provision as opt-out, requiring only a state statute to invalidate the Federal law in that state. Of course, if the provision is unconstitutional because it violates an individual right, than it is struck down the old way.

1.6.2005 3:24pm
Wince and Nod (mail) (www):
In case it wasn't obvious, I like an Amendment for this purpose precisely because it does override stare decisis. It is possible that such an Amendment might have to be renewed periodically in order override stare decisis again.

1.6.2005 3:28pm
geekWithA.45 (mail) (www):
gwa45 speaking for many informed, liberty oriented laymen here.

I'd like to second Kevin Baker's view, and expand a little bit about the "view from the ground".

If you look beyond the trends found in the academic, political and judicial worlds to the people, I think it's reasonable to say that there are two broad divisions of viewpoint.

I fear that the most prevalent viewpoint simply accepts without a whole lot of question the current state of affairs "as is", with the more or less circular reasoning that "the government is doing {x,y,z}, has been doing so for a long time, and therefore {x,y,z} has past the test of time and the courts, and therefore must be in accordance with the Constitution." Folks with this view, even if they should actually read the text of the Constitution generally fail to notice or resolve the discrepancies that exist between the current state of affairs and the document. They accept as valid the expansive views of the commerce and other abused clauses. The notion that "it's the governments job", whether it appears on the Constitution or not is pandemic.

Then there are those of us who have taken notice of the fact that minor things like oh, say, The Bill of Rights have been clarified, caveated and loopholed to the point where they've significantly eroded. Even the most casual bit of research into the issue reveals that this erosion isn't of recent vintage; it's been going on for more than a generation. A citizen simply doesn't feel that their protections are sufficiently firm or actionable as to have reliable, real world, immediate meaning.

The acid test is simple and devastating:

Load up a real cowboy gun, (if you can manage to lawfully acquire one in the first place…a significant feat in and of itself in some jurisdictions) hang it openly on your hip and start ambling peaceably around Anytown, NJ, or Washington, DC. See how far you get before being picked up, and report back from your cell about how effective your appeals to the 1st, 2nd, 4th, 5th etc amendments were. My understanding of how these things work is that smart lawyers will try to get you off on procedural technicalities rather than wave around a copy of the Bill of Rights.

It's a sad world when procedural technicalities are found to be more expedient and reliable than the face value of our founding documents.

Folks understand that if the B of R is Swiss cheese, then it's extremely unlikely that the body of the Constitution remains pristine and untarnished, and aren't surprised at what they find when they start flipping those rocks.

The phrase "Constitution in Exile" is certainly less common than variants of "Constitutional Restoration", and related sentiments. I'm not even certain most folks would be able to articulate it as such, and express it instead as a sense of helplessness in the face of overwhelming displays of governmental power whose boundaries appear to be without limit, and whose accountability to the voter is tenuous at best.

If you want to hear the rumblings for this sentiment, I suspect that they're a lot louder on the street than from the ivory towers.

Perhaps, then, this represents an alarming disconnect between where people's heads are, and those who would comprise an "official" conservative movement.
1.6.2005 5:23pm
Sic Semper (mail) (www):

Regarding your proposed amendment requiring interpretation of constitutional text in accordance with the original public meaning --

The problem lies in indeterminate text. For example, what did "liberty" or "due process of law" mean in 1789, or 1868? and was it the same both times? I don't think any judge dismisses out of hand the importance of original meaning; but they sometimes have to figure out what the law means now, when it's not clear at all that there was a specific agreed upon public meaning at the time of adoption.

There's even an argument, e.g. near the end of Kennedy's opinion in Lawrence, that broad authority for later judicial construction is implied by the adoption into law of such indeterminate text.

Now, whether this ambiguity so enshrouds the 2d Amdt, which seems to be your main area of concern, is a different question (and of course a lot of people around this blog would say quite strongly that it does not).
1.6.2005 6:17pm
Wince and Nod (mail) (www):
Actually, Sic, I'd rather restore the commerce clause than the 2nd, and maybe the privledges and immunities clause of the 14th over either, but they are all on my list.

As I understand it, any ambiguity in the original public meaning should be considered to be there purposefully, as a way the drafters compromised between the many possible and more strictly defined texts. At the same time, the courts should reflect this ambiguity and dance wildly round it in the uncertain manner of an electron about a nucleus, so that stare decesis does not force it to become calcified and unambigous. Let's make that ambiguity a feature, according to the original meaning, and not consider it a bug.

1.6.2005 7:55pm
Grim (mail) (www):
GWA.45 has a good point. The argument for restoring the Constitution to a textual, originalist standard probably has stronger support outside than inside the legal/academic community.

Whether or not there is a movement in legal circles to 'restore a Constitution in Exile,' there certainly are several competing popular movements to do so. The movements differ only on how far back you have to go to get to the proper Constitution, and which particular Constitutional liberty they feel strongest about restoring.

"Freedom of religion" movements include people wishing for a re-examination of the entire debate about the Establishment Clause of the First Amendment. There are large groups of people who broadly favor what was the alternative-to-Jefferson interpretation, i.e., the narrow reading that only prohibits the actual establishment of a state religion, not a "high wall of separation." I must get solicitation emails from half a dozen groups advocating some variant of this.

Nor, having read their arguments at length, can I say that I think they are entirely baseless. Just the opposite: they are probably correct in asserting that the majority of the Framers would have rejected the Establishment Clause's current interpretation.

The particular freedom GWA.45 cites is another that is the subject of popular movements. Consider the Virginia Citizens' Defense League, which openly carries firearms to town meetings, restaurants, bars, and the like. This is a movement that is rooted in originalism and textualism too: their "downloads and reading" page includes texts exploring the meaning of the 2nd Amendment on just those grounds.

This is a group prepared to confront lawmakers and police with openly displayed weapons. Their reasons for doing so seem to me entirely just and honorable, and even wise: a right that is unpopular with policemen, if it is not vigorously exercised by enough people to prevent police intimidation, can be functionally repealed by executive action. That said, it takes real devotion to the cause, and some personal bravery, to take such a visible stand on an issue that is -- as mentioned -- unpopular with policemen.

I don't know what kind of movement there is among legal scholars. But I think there are a number of movements of this sort on the right, and some of them are increasingly successful.
1.6.2005 8:13pm
Wince and Nod (mail) (www):
I think originalism is more popular with normal citizens because we want the Constitution to be ours, not the effective fiefdom of judges and elite professionals. We want the language to mean what it says because we want to be able to understand and follow it. When the courts treat the Constitution according to living document jurisprudence and subject it to stare decesis even when decisions were faulty, we slowly lose the ability to depend on our most basic law without legal training.

I know that ignorance of the law is no excuse, but given the hugh volume of material one has to absorb to know the law, I think it has very much become an excuse.

1.7.2005 12:10pm
The "plain law" argument is attractive until people have to deal with the actual effects of it. The First Amendment clearly states "Congress shall make no law ... abridging the freedom of speech ...". There's no ambiguity there, as Justice Black was fond of saying, "No law means No law". But what happens then is that everyone begins battling over the scope of the law. Did the Framers intend the 1st Amendment to apply to pornography? Commercial speech? What do you do with modern media like TV, radio and the Internet that were never contemplated by the Framers? Is flag burning constitute speech? Can wear a jacket with the phrase "FUCK THE DRAFT. STOP THE WAR" in public and be protected by the First Amendment? Justice "No law means No Law" Black said no. "Plain Law" sounds plainly appealing until you try to deal with real life situations.
1.7.2005 3:32pm
Wince and Nod (mail) (www):
More about Karl's proposal in the comments to this post.

1.10.2005 2:01pm
Kevin Baker (mail) (www):
I'd like to thank Orin for opening the comments on this post. It's generated some very interesting discussions.
1.12.2005 10:54am