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The Constitution-in-Exile Myth Returns:
I just finished reading the New York Times piece by my friend and colleague Jeffrey Rosen on the alleged "Constitution in Exile" movement. Having written on this topic a few months ago, see here and here, and also having discussed it a bit with Rosen during his research into the piece, I wanted to add a couple of thoughts.

  In my view, the problem with Rosen's essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential "movement." I don't think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn't.

  Rosen downplays this problem, but I think a close look at the evidence reveals that Rosen is stretching. For example, here is what Rosen says about the influence of the alleged C-I-E movement in the current administration:
  The influence of the Constitution in Exile movement . . is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.''
  So the best we can do is get the view of one anonymous person that other mostly unnamed people believe in a set of principles that the anonymous person says match the views of this alleged movement? Surely the last four years of Bush 43 would have provided more concrete evidence than that. As for Addington, note what Rosen does not: that while Addington in the Vice President's office urged DOJ to take a position that may or may not have reflected the influence of the alleged movement, DOJ apparently refused all of these urgings. So much for influence.

  Rosen also overplays his hand in describing the development of the alleged movement. Consider his description of Douglas Ginsburg's 1995 essay that apparently contains the only known use of the phrase "Constitution In Exile" by a conservative or libertarian. Rosen portrays the essay as a manifesto urging an eager audience to take action:
  By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging.
  In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of ''the Constitution in Exile.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty — even if perhaps not in their own lifetimes.''
  If you go back and read the actual article, though, a different picture emerges. Ginsburg's alleged manifesto was a review of a book by David Schoenbrod arguing for the return of a strong nondelegation doctrine in constitutional law. The bit about the Constitutution in Exile is a two-sentence paragraph at the end of Ginsburg's introduction, before he turns to Schoenbrod. Ginsburg doesn't applaud Schoenbrod's Constitution-in-Exile-ish proposal, however; he is quite critical of it. Ginsburg's review argues that the answer to the policy concerns raised by excessive delegation is not constitutional law, but statutory law: he embraces an idea introduced by Justice Stephen Breyer in a 1984 article in the Georgetown Law Journal that expensive regulations should require affirmative Congressional approval. While Rosen says Ginsburg called for a resurrection of the Constitution in Exile, Ginsburg actually recommended Congressional adoption of a proposal made by that right-wing radical Stephen Breyer.

  I have enabled comments. As always, civil and on-point comments only.
DNL (mail):
This doesn't pass the laugh test.

Go into a law school for a semester and you'll see they have symposia about everything. My school had one on the rights of the transgendered; the IP issues surrounding the Dead Sea Scrolls; one in the memory of Jacques Derrida; and about two dozen more I cannot remember. Again, that is just this semester.

Where are all the CIE symposia? Surely, there are journals out there that would sponsor one -- if there were such a movement.
4.17.2005 4:56pm
noahp (mail) (www):
There is so much distortion in the Rosen article that it is quite disturbing that this is being passed off to the public as constitutional theory. I think Rosen is trotting out the Epstein "right of property" thesis as a sort of straw-man. The issue in Lopez was the extent of Congress' delegated powers, not Lopez's right to carry a gun in front of a school or use his property as he saw fit. That is a blatant distortion to present Epstein's theories of private property and then juxtapose Lopez without explaining the distinction. And since when (in the eyes of the left) has Justice Thomas ceased being Scalia's sycophant and has now developed his own, disturbing views of the constitution? Now we are supposed to see Thomas as scarier than Scalia? (And Scalia has voted with Thomas on every Commerce Clause case I can recall!). Rosen's main concern, however, is that federal environmental laws would be struck down (Perhaps he should read Blackmun's concurring opinion in NLC v. Usery, which deals with the same issue). Solution: don't strike down federal economic laws (also, see Missouri v. Holland, written during the period of "lasseiz-faire" jurisprudence, which specifically rejects the argument that states have a proprietary right to natural resources within their own state).
It is difficult, in good conscience, in my opinion, to completelely ignore the Court's post-1937 retreat from policing delegated federal power with the overwhelming evidence showing that the framers envisioned limits on federal powers. Anyone who wants to learn about these issues, however, would do very well to ignore Rosen's article.
4.17.2005 5:22pm
Jim Rhoads (mail):
Mr. Rosen's article is of the type often seen in the NYT. A "thought piece" designed to be a foundation for Democratic talking points for the Senate Judiciary Committee and elsewhere.

It is complete with a demonizing label - Constitution In Exile - ("CIL"), and with more than a dollop of misleading history giving the impression that all who subscribe to a jurisprudence which could result in less intrusive federal government want to return to the days of segregation, slavery, child labor, robber barons and so on.

It is time for a number of scholarly rebuttals widely circulated in the MSM and the blogosphere, as well as counter talking points which will set the record straight.

Here's hoping you and the rest of the VC can be in the forefront of such an effort.
4.17.2005 5:38pm
Cardozo Law Student (mail):
Somewhere on Volokh I saw that a call was put out for other conservative cites of "Constitution in Exile". Well, this bored law student just did a little bit more research via LexisNexis. Apologies if this has turned up elsewhere...

By entering in the phrase "exiled Constitution" rather than "constitution in exile", I found a cite via LexisNexis that predates Ginsburg's use by about six years. Interestingly, it is, however, being used in a *liberal* context, to describe the post 1880's period as the exile of *labor's* constitution.

This occurs in William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1111 passim, but especially at page 1231(1989) (mentioning "Labor's exiled Constitution"). The author uses the phrase "exiled constitutional claims" on numerous occasions besides that one, without exactly explaining what the term means.

As it turns out, footnotes 195 and 476 of the Forbath article cites *prior* articles by Robert M. Cover (97 HARV. L. REV. 4 (1983), 95 YALE L.J. 1601 (1986). According to Forbath, "Cover developed the notion of a social movement creating 'exiled constitutional narratives' to describe how the Civil Rights movement used civil disobedience". See Forbath, n. 476.

So, perhaps Ginsburg himself perhaps unknowingly referenced a term that had some currency among certain (seemingly liberal) academics from a decade before? And perhaps when Sunstein latched onto the phrase, it was its earlier use that he had in mind?
4.17.2005 7:10pm
Les Brunswick (mail):
I am not a legal scholar. However, I have been reading the National Review since the early 1960's. The articles there consistently reject a great deal of legislation from the Progressive and New Deal eras, and they often use the argument this legislation is unconstitutional.
4.17.2005 7:23pm
W (mail):
As one of Richard Epstein's 1L torts students at UChicago this year, I can write with certainty that R.A.E. is under no illusions about the lack of attention given to his paradigm on government and law in washington these days. Even if there ever were a constitution-in-exile movement building steam (which I doubt considering the the lack of affinity for organization that anti-organization libertarians, classic liberals, and originalists exude) that movement is long since dead. The republican party loathes the growth of the federal government's size and power about as much as John Kerry loathes Saddam: in word but not deed. The NYTimes should be more concerned with Cass Sunstein's position that the New Deal meant to amend or interpret the constitution such that all citizens would be entitled to positive rights like housing, food, healthcare, clothing, and 4 tickets a month to see the Mets: it's growing in popularity, the constitution-in-france movement.
4.17.2005 7:35pm
arbitraryaardvark (mail):
Of course there is a constitution in exile movement. A movement, like a trend or a tendency, doesn't require its members carry cards and pay dues. What libertarian hasn't heard, "the constitution isn't perfect, but it's better than what we have now"?
In the 1910's, wobbies (IWW) fought for the exiled first amendment.
William Brennan was a leader of the movement to bring state constitutions out of exile. umkcthesis.blogspot.com, chapter 2.
The McConnell dissenters and folks like Brad Smith and Jim Bopp continue the First Amendment fight.
Ashcroft and the NRA seek to restore the exiled second amendment. Tom Bell brings scholarship to bear on the Third.
The ACLU fights for the 4th. Epstein's taking clause allies include the federalist society and the, what was it, sagebrush revolution? folks. www.fija.org stuggles to restore the 7th amendment's fully informed jury. www.fear.org opposes fortieture as excessive fines.
When i was in law school circa 1990, knowing that the law library had randy barnett's The Forgotten Ninth Amendment was a reassurance that our movement's voices were being heard. Today in Raisch Barnett is taking on Wickard v Filburn, a case standing for the exile of the constitution.
A conference on lockner was held this week.
www.ij.org seeks to restore the privileges and immunities clause. and so forth. why deny this is a movement? It's not like the claim is that it is a conspiracy - just a movement.
Why deny that "constitution in exile" is a pretty good label for the movement?
4.17.2005 7:36pm
A Blogger:
AA,

Aren't you just playing with definitions? Under your view, there are dozens if not hundreds of constitution-in-exile movements, right?
4.17.2005 7:43pm
Joseph Henchman (mail):
C-I-E is a silly title for it -- reminds me of Czarist Russian emigres sitting in France or Manchuria in the 1920's while doing nothing but predicting the imminent collapse of the Soviet state.

I too would be a card-carrying member of such a movement if it existed, and as an ex-Koch Fellow have friends of similar inclination at other law schools. The closest thing to C-I-E is that we meet at Federalist Society conferencs to gab about Randy Barnett's book (the title of which, I must say, would be a better name for such a movement).

Perhaps we should take Sunstein's article as an anti-manifesto and actually create this movement. A movement of libertarians is always fun to lead . . . .
4.17.2005 8:25pm
Lucky Adrastus (mail) (www):
This CIE "movement" reminds me of the liberal "movement" called Transnational Progressivism, which was supposedly some vast ideolgical movement amongst liberals to tear down the nation state. Like CIE, Transnational Progressivism was a term used and recognized solely by its opponents. As a moderate-liberal myself (and a UCLA law student), I'd never heard of "TP" until I started seeing references to it in the National Review. I certainly never read liberals using the phrase to describe themselves before or since. Libertarians appear to be having a very simliar experience right now with CIE.

I think both phenomena are driven by a desire of some ideologues to create a "straw movement" to oppose, and to give it a vaguegly credible-, vaguely sinister-sounding name, so that uninformed readers will believe it exists and is bad.

As for CIE itself, I see no evidence of Lochner being revived by this Supreme Court, nor by Bush for his part. If he really were into CIE or libertarianism or whatever you want to call it, wouldn't his prefered federal court picks look more like Kozinski and Posner, and less like Scalia and Thomas?

By the way, I don't mean to say that Kozinksi or Posner would return us to Lochner; I'm just using them as examples of more radical, libertarian judges. I don't mean radical in a bad way, either!
4.17.2005 9:10pm
aslanfan (mail):
Rosen's article is imprecise and fails to draw appropriate distinctions. By exaggerating the influence of the so-called "movement," Rosen also gives cover to the shrill activists who contend that Bush has already added dozens of federal judges who are bent on overruling Lochner. By characterizing this as a broad "movement" (as opposed to the personal views of a certain academics and think-tankers), don't they realize they run the risk of giving these ideas greater legitimacy? If Judge John Roberts (of all people!) is part of the so-called movement, who will care when a real Lochnerian (Justice Brown?), is nominated for the Supreme Court?
4.17.2005 9:51pm
AScientist:
Here is an article written by one of our leading legal intellectuals, yet it is thoroughly infused by (very effective) but improper technique (for reasoned debate).

The article seems to me to be barely more than psychological warfare intended to mobilize a defensive position on behalf of the pro praescriptis politico legal tradition that sprung from the exigencies of the great depression. It aims to erect an a priori resistance (suspicion of) to any judical nomination of the current administration by suggesting something sweeping (and insidious) is afoot.

The article suffers from a strong insinuation bias and an affinity for quoting arguments that contain straw-man fallacies and package deal fallacies.

The lack of substantive evidence for the existence of an organized movement to restore the "constitution in exile" is merely an indicator of the general tendancy of the article.

Don't dwell on it and miss the forest for the trees. I have come to view the NY Times magazine as a confluence of the editoral page and accurate but often irrelevant background reporting (fallacy of misleading vividness).

Federalism is not libertarianism; it's not even an approximation.

I urge everyone to hold the line against fallacies of equivocation and entanglement--irrespective of their personal feelings to the target of the fallcies.
4.17.2005 10:20pm
SupremacyClaus (mail):
The Constitution is certainly not in exile. It is being held for ransom by the lawyer. It is time that the public retrieved its converted chattel in self-help.
4.17.2005 10:20pm
Crime & Federalism (mail) (www):
[I'm not sure what's fair game for the comments, so I apologize for any non-sequiturs. Anyhow, a few observations.]

I thought the article's description of the growth of libertarian based public-interst law firms was fascinating. I'd love to see a lengthier piece on this.

Did anyone get the "vibe" that Rosen's criticisms were largely directed at the results-based C-I-E members? Rosen seemed to treat the folks at IJ favorably, where as he was more critical of the AEI/Cattlemen people. I wonder if Rosen's hostility (if that is even an accurate description) seemed to result from a frustration with those on the right who want DP economic liberty only because it means that their cronies in big business will benefit. Where as Bolick/Mellor, are more concerned with liberty qua liberty.

When did Prof. Sunstein become a "moderate"?

Where were the counter-examples of Bush 43 putting the C-I-E into practice? Ashcroft v. Raich is styled as such because federal agents were harassing people using homegrown medical marijuana pursuant to state law. If the C-I-E movement is so powerful, what explanation is there for this? Of course the SG has a duty to defend federal laws, so that explains Clement's conduct, but if Ashcroft had not so zealously enforced the laws, there would not be a case or controversy. Is Raich simply an exception to the principles of the C-I-E movement, or is it evidence that Bush 43 and other top executive officials do not take federalism seriously.

Moreover, why the excessive focus on the "bad" that would result from less federal intrusion into state and local affairs. Lopez and Morrision, if enforced by lower courts, would benefit minorities, since they are the ones who ultimately suffer a disparate impact from increased federal criminalization. Why did Rosen only parade the potential horribles that would result to an originalist understanding of the Commerce Clause?
4.18.2005 12:49am
alkali (mail):
Suppose I wrote an article claiming that one of the major forces in American politics is the Prepublican Party; that the Prepublican Party's leaders included George Bush, Bill Frist and Denny Hastert; that Prepublican economic policy was focused on lower federal taxes; that Abraham Lincoln was the first Prepublican president; etc.

Would it be fair to say that that is completely wrong, there is no such party, and I have completely misunderstood American politics? Or would it be more accurate to say that all that is true, except that the party I am describing is actually called the Republican Party?

Similarly, Rosen asserts that (a) there is a major segment of conservative legal thought that holds that most of the activities of, say, the EPA are unconstitutional either because of nondelegation or Lopez type reasons, and (b) that this is the "Constitution In Exile" movement. Stipulate that he is wrong about (b). Is he really wrong about (a)?
4.18.2005 9:10am
Joseph Henchman (mail):
Tomorrow, ACS here is hosting - surprise! - Professor Rosen to speak on the dangers of the Constitution in Exile movement.
4.18.2005 9:40am
Former Kerr Student:
So I read the former posts and the best I can figure is that you were originally protesting that conservatives never used the "Constitution in Exile" label, although it might fairly be used by critics describe what a lot of conservatives think. Now you complain that the conservative revolution isn't a revolution at all, and not only that, but Rosen also got the name wrong. Pay no attention to the man behind the curtain, because in fact there is no man, and no curtain either, and even if there were a man and a curtain, they are in fact a dog and a bicycle, not a man and curtain at all.
4.18.2005 10:02am
OrinKerr:
Former student,

Nope, that's not right. The alleged Constitution in Exile movement is supposed to be a break from traditional Scalia/Bork conservatism. The Constitution in Exilers are supposed to be different because they want to strike down the New Deal state as unconstitional, such as by restoring substantive due process as a way of limiting economic regulation under the Constitution as it was regulated by the pre-West Coast Hotel Court. Scalia doesn't want to do this: he *despises* substantive due process.

My point is not that there are no conservatives, but that there are very few -- and very very few of any influence -- that want the Supreme Court to invalidate the New Deal and retsore the pre-New Deal constitution. That is simply not a goal of anyone except for a very very small number of academics and activists.
4.18.2005 10:40am
Robert Schwartz (mail):
"The NYTimes should be more concerned with Cass Sunstein's position that the New Deal meant to amend or interpret the constitution such that all citizens would be entitled to positive rights like housing, food, healthcare, clothing, and 4 tickets a month to see the Mets: it's growing in popularity, the constitution-in-france movement."Great Comment W.

"The Constitution is certainly not in exile. It is being held for ransom by the lawyer." Very Drool Claus.

If anyone organizes a Constitution in Exile movement, I want to contribute money to it. Of course, we will have to agree on what the Exiled Constitution looks like.

I regard the doctrine of incorporation of the bill of rights into the 14th Amendment to be pernicious and the doctrine of substantive due process to be equally pernicious. I also thing that the 9th amendment is a conveyancers reservation having no substative content. I think that neither Barnett nor Epstien would agree with me.

But Jeffery Rosen can only bring a smile to my lips. I have long believed that the New Deal was unconstitutional. If Social Security is unconstitutional, we can end it, not mend it. Wouldn't that be great?
4.19.2005 3:48am
The Sound Unheard (mail):
There's an interesting discussion of this on ACSBlog, examining the history of this movement (if such it be) both under the CIE name and otherwise.
4.22.2005 4:41pm