I'm sure the legal blogosphere will be abuzz with discussions of Jeff Rosen's N.Y. Times magazine piece on the purported "Constitution in Exile" movement.

Jeff was a Yale Law classmate of mine, and I'm generally a great admirer of his work. But I do want to take issue with a couple of things in this particular piece.

First, I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

Yet, outside of Ginsburg's article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article. I acknowledge that some Federalist types, including me, do believe that various pre-New Deal constitutional doctrines should be revived. But let's be clear on the fact that the idea that there is some organized "Constitution in Exile movement," that is in fact using that phrase is pure fiction. Why does this matter? Because the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves. Would I, for example, be considered a member of the "Constitution in Exile movement" even though I don't buy Epstein's theory of the Takings Clause, and think Lochner was probably wrongly decided? [UPDATE: It also matters because there's a reason actual believers wouldn't use the "Constituion in Exile" moniker. Unlike conservative orginialists, the more libertarian elements on the legal right--the folks that Rosen interviews for his piece--generally don't have any nostalgia for the pre-New Deal or even pre-Warren Court jurisprudence on issues such as the Equal Protection Clause's protection of minorities, the Incorporation of the Bill of Rights against the states, the First Amendment, etc.; I know that both Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too. The phrase "Constitution in Exile" suggests a desire to revive pre-New Deal constitutionalism whole hog, when the folks Rosen refers too mostly want to add additional limits on government power. In fact, the interest groups most critical to the Dems on judicial nominations--feminists, ACLU, minority activists--would almost certainly by happier with a Justice Janice Brown or Alex Kozinski than with a Justice Luttig or Bork].

[material deleted; it was unfair]

Finally, Jeff, while not explicitly critical of libertarian constitutional theory, does seem to be implicitly raising the alarm regarding potential future conservative or libertarian judicial activism. I hope it's not impolite to mention that this alarm-raising comes with a touch of irony from someone whose first published law review work defended the proposition that the Ninth Amendment protects judicially enforceable natural rights, and, moreover, that courts should refuse to enforce a constitutional amendment banning flag-burning, because such an amendment would itself be an unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991).

UPDATE: Oh, and it should go without saying that none of the individuals Rosen identifies as pushing the purported "Constitution in Exile movement"--Greve, Epstein, Barnett, Bolick, etc.--have any political power. The odds that Bush will nominate a libertarian type to the Supreme Court (unless its Janice Brown for other reasons) are slim to none. He may nominate someone like Luttig who believes in some limitations on federal power, but you would be hard pressed to find any originalist who believes that the current scope of federal power complies with the original meaning of the Constitution. Even Bork, who certainly has little in common with Greve et al., has always acknowledged this point, though he's argued that it's too late to do anything about it, a rather odd (and politically convenient) perspective for an originalist, and one that's always been controversial even among his acolytes. And if the Bush people were really intent on pushing a constitutional revolution, wouldn't they have followed in Reagan's footsteps and appointed a prodigious fraction of conservative and libertarian legal academics to the federal bench?