The Volokh Conspiracy
[Todd Zywicki, November 9, 2005 at 9:25am] Trackbacks
Jesse Jackson has Discovered the "Constitution in Exile":

We have repeatedly marveled here at the discovery by some of a secret plot by conservatives and libertarians to reimpose the so-called "Constitution in Exile." So secret, apparently, that advocates of the theory won't even use the label in public (of course, they don't seem to use it in private either...). Jesse Jackson is the latest to have unmasked the nefarious plot:

Now, on the far right of American politics, comes a new reaction proclaiming that the real Constitution has been "in exile" since the 1930s. They want to roll back not only the privacy doctrine on which women's right to choose rests, but the Warren Court's rulings and those of the Roosevelt Court also. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was struck down as exceeding congressional power and when states' rights were exalted.

Alito is in that line.

Courtesy of Ann Althouse, who provides a pithy assessment of Professor Jackson's legal analysis as well.

My question is more pedestrian--where in the world did Jesse Jackson latch on to the phrase "Constitution in Exile"? If it has filtered down to popular use in this manner, this is a meme that seems to have a remarkable degree of strength.

Interestingly, I see that Wikipedia actually has a page for the phrase, which discusses Orin and David's critique of the term's supposed use.

Just Some Guy (mail):
There should probably be a rule similar to Godwin's Law, that if you invoke Jesse Jackson as support for any legal principle, then you automatically lose any argument.
11.9.2005 9:36am
Medis:
I always chuckle at the thought of libertarians successfully maintaining any sort of secret plot for any length of time.
11.9.2005 9:46am
frankcross (mail):
I always thought that "the Constitution in Exile" was a very cool phrasing. Even if it was created by the opposition, I think libertarians should embrace it. It's good branding.
11.9.2005 9:49am
J..:

My question is more pedestrian--where in the world did Jesse Jackson latch on to the phrase "Constitution in Exile"?

What an odd question. Why would you ask?

(This reads rather rudely, and I don't mean to be so . . . but Rosen's piece was in a rather mainstream magazine and the phrase has been bandied about in the legal literature for a good amount of time. Your question seems to assume that you think Jesse Jackson is illiterate, a position I'm assuming you don't take!)

If the question is really "why is this such a nice sounding sound bite to politicians from the left," that is different.

BTW: the Wiki piece is done primarily by a college debate fan and a self-described Ohio "Originalist." (Randy has had a Wiki page up for over two years.) The Volokh link was added many moons ago by the same college student (Harry491).
11.9.2005 9:50am
CJ:
"Courtesy of Ann Althouse, who provides a pithy assessment of Professor Jackson's legal analysis as well."

Professor? That's a new one for JJ. I guess he finally dropped that bogus "Reverend" title.
11.9.2005 9:55am
Chico's Bail Bonds (mail):
Please stop declaring victory on the "Constitution in Exile" debate. You lost. You will continue to lose no matter how many times you declare victory.

Don't despair. It wasn't a complete loss. You showed there were some real problems with the label "Constitution in Exile" and how it is used.

Nevertheless, any time you try to define related sets of ideas held by many people in three words, you are not going to be very precise. But the "Constitution in Exile" label has sticking power because it allows you to communicate the gist of what you are talking about in onlythree words instead of engaging in a detailed discursion on libertarian ideology.

Frankcross is absolutely right. The label is great branding. The best you can hope for is to fill the term "Constitution in Exile" with a positive meaning. Any other strategy is futile. You should realize that now that you and your co-bloggers have declared victory so many times, yet the phrase keeps coming back.
11.9.2005 10:05am
Chukuang:
where in the world did Jesse Jackson latch on to the phrase "Constitution in Exile"?

Is the NYT really so obscure? Wasn't Rosen's piece in the Sunday Mag?
11.9.2005 10:05am
d'oh! (mail):
It's funny how Rosen, who is reasonably moderate, has taken in the liberals. There is no CIE movement, and no realistic threat that the Court is going to return to a pre-New Deal interpretation of the Constitution. There is, however, a real movement for, and threat of, overturning various Warren and Burger Court rulings that liberals cherish, especially Roe v. Wade. Rosen has made it clear that he dislikes Roe intensely, and more generally advocates "judicial restraint" of the sort that modern liberals cringe at. But he's managed to distract many liberals from what should be there true worry in favor of chasing a chimera. Robers and Alito should take him out to dinner.
11.9.2005 10:08am
Robert Schwartz (mail):
I am with Frank and Chico. I think it is a great slogan.
11.9.2005 10:47am
corngrower:
Roe is a very bad decission. That's it. If???? the elected gave a hoot, they would introduce a law, that, is already codified by SCOTUS, that says Abortion is now a part of statute. Everyone says the 70 to 80% of America agrees with abortion, so? why has this law been introduced??? Reality is different. Most of America is not in favor of abortion. Teddy Kennedy won't do it. Cause he would the have to take a position.
11.9.2005 10:52am
reader-in-exile (mail):
It's classic paranoid thinking: there is a small, secretive cabal seeking to overthrow all that is good, and it's so secretive -- get this -- that they even deny their own existence! How much more proof do you need of their wickedness?
11.9.2005 10:55am
eddie (mail):
Simple question, please a simple answer:

Notwithstanding the overreaction to the name of a movement, does anyone here suggest that there is not a movement, perhaps one might more aptly call it "originalism", that seeks to do most of the things Reverend Jackson has delineated.

I know that words make a difference, but names. What is it about this name that is perjorative or unseemly.

But if we are going to get all hot and bothered about names, then let's start criticizing the names of all legislation coming from the current congress.
11.9.2005 11:13am
KevinM:
Hey, there are a lot worse ways to be branded by your ideological adversaries. "Politically correct" started out, in my college days, as a self-deprecating joke -- people on the left poking fun at the left's rigidity. Even the broadest irony, however, cannot survive political argumentation, and it soon was applied literally, and critically. The Mensheviks (more or less, "minoritarians," right, Eugene?), with awesome shortsightedness, accepted that designation, thus sealing their status. But Constitution in Exile is not such a bad shorthand; I sense that what people object to is the notion that there's a secret handshake.
11.9.2005 11:25am
Jacob (mail):
To be fair, eddie, Rosen seemed to go to great lengths to distinguish "Constitution in Exile" from the "originalism" or "textualism" theories (or at least what most perceive them to be). My main complaint with the article at the time was that his reasons to distinguish CIE were a bit of a reach. I think people want to be able to understand why Scalia, Thomas, and Rehnquist didn't vote similarly in every single case. So they parse words and try to read between lines, latching onto the dicta of discourse in an attempt to find some overarching pattern/theory/etc. This is how we get 134 different theories of interpretation. Then someone like Jesse Jackson (or 99% of politicians and pundits) comes along in an attempt to either push an agenda or simply understand a subject he knows little about (or more likely some mixture of both), and this is the unfortunate product.

I'm willing to bet most judges (including Justices) and scholars roll their eyes when they hear about stuff like this. To them it's probably a bit like having your kid come up to you, parroting something (probably out of context...definitely long forgotten) you said weeks ago. The kid has obviously missed the larger (or smaller) point you were trying to make, but he or she is just a kid. Who the hell cares if a kid gets it wrong?
11.9.2005 11:34am
magoo (mail):
Nothing is funnier than to see people disclaim the label "Constitution in Exile" but then hail a book entitled "Restoring the Lost Constitution." If you slam Rosen for using the phrase, you need to slam Michael Greve at AEI as well, who seemed perfectly comfortable in embracing the term, at least during his interview with Rosen. Having said that, Jackson is way wrong in associating Judge Alito with the ravings of Greve, Barnett, et al.
11.9.2005 11:42am
Marcus1:
I don't get the objections at all. Is it simply an argument that members of a movement should be able to come up with their own moniker?

The problem is that it's a pretty good moniker. If you want to restore the lost Constitution, then it seems fair to conclude that you believe the Constitution is in exile. If you believe judicial activists have invented a bunch of Constitutional "rights" that aren't actually in the Constitution, then it would seem you believe that the Constitution is in exile.

I mean, I can see why it's preferable to conservatives not to be put under a funny label so they can be dismissed like "judicial activists." I don't think they can really argue, though, that the movement doesn't exist. It starts to sound a little like hiding what they really believe, or at least hiding what many of those who support them believe.
11.9.2005 12:08pm
Harry491:
J.. said "the Wiki piece is done primarily by a college debate fan and a self-described Ohio "Originalist."... (Harry491).

I'm not from Ohio, and I'm not a fan of college debate. More to the point, I'm not an Originalist, as can be shown by various quotes from Wikipedia, including the time I said that "the activism charge originalists make (one of their most important/favorite arguments) isn't worth much."

Additionally, if you look at the original version of the article I wrote, you'll be hard-pressed to find any praise of originalism. It wasn't until The Volokh Conspiracy started writing on the subject that the piece had any pro-originalist content at all.

I'm not sure why you were mentioning my credentials in the first place, but you should at least try to get them right.

Cheers,
Dave
11.9.2005 12:14pm
Shelby (mail):
My personal quarrel with the term "Constitution in Exile movement" has always been the "movement" part. It's only accurate in the sense that there are a number of people going in approximately the same direction at approximately the same time. If it's a group of military units under unified command, it's a "movement". If it's a bunch of commuters headed downtown, not so much.

There's not sufficient agreement among those lumped under this rubric to merit this term. That's why it's a straw man -- a trumped-up figure to serve as a putative bogeyman for those who need an opponent to rally their own supporters.
11.9.2005 12:25pm
J..:
Dave, my apologies for my poorly woreded post while writing quickly. I meant this: (1) you wrote the article and, (2) another poster, who is a self-described originalist (though, from Indiana, not Ohio [is there a difference?]), contributed. My apologies if my error offended you; it wasn't my intention. I like'd the Wiki piece for what it is.

Oh, and, I mentioned it only b/c I thought it interesting. Wiki fascinates me.
11.9.2005 12:30pm
fi99ig (mail) (www):
+1 on the questions raised above regarding why "the lost constitution" is ok, but "constitution in exile" is bad. I genuinely find this puzzling, as they both sound the same to me, and would welcome a reply by Todd.
11.9.2005 12:44pm
guest (mail):
Re: "lost constitution. First, is there any evidence that any of the folks Rosen lumps in as part of the "consitution in exile movement" has actually endorsed Barnett's book?
Second, Barnett's book does not argue or imply that constitutional law was anything close to being correct pre-New Deal. He wants to reinterpret the Constitution entirely, not go back to another era.
11.9.2005 1:02pm
magoo (mail):
Shelby -- There's a judge on the DC Circuit (Ginsburg, who, let's remember, coined the phrase), a well-financed think-tank in AEI, and assorted academic cranks. Sounds like a movement to me. Or if you prefer, perhpas a faction, a small crusade, a mini-campaign, or how about the C-in-E Grouping? The Rosen piece recognizes how ineffectual the Grouping has been so far. But if the Ginsburg/Barnett theories ever take hold, you can bet the farm that everyone now dumping on Rosen will claim to have been present at, and part of, the movement's founding.
11.9.2005 1:43pm
ChrisS (mail):
"They want to roll back not only the privacy doctrine on which women's right to choose rests, but the Warren Court's rulings and those of the Roosevelt Court also."

When was Roosevelt the Chief Justice?

So much for the Left's "independent judiciary" rhetoric...
11.9.2005 1:49pm
devil's advocate (mail):
I also like the turn of phrase "filter down" to Jesse Jackson. Whatever you think of his policies or his public persona or motivations or whatever, how could you think the man was ignorant.

He is likely to be well-informed about the issues of the day, and it is no secret that many "orginalists" including many on this blog want to overturn long-standing precedent.

Your campaign against the CIE term seems more plausibly an effort to keep your true desiers secret. are you really that opposed to the term? some libs seem to like it. lost constitution, CIE, who cares. Do some particular person want to overturn 40-70 precedent or not? If so, I think it is fair to call that position a "return to the constitution" or CIE, or whatever metaphor described your position.

Claiming there is no such thing as CIE, when there are clearly people, Justice Thomas included, who do want to return to constitutional interpretations which have not been used for several decades sounds like a PR cover-up effort, even if it is just your semantic or whatever objection just to the phrase itself.

What is the point of all your incessant complaining about the use of the term CIE? you are the one perpetuating this apparently endless and probably pointless deabte.

What not debate the precedents you think should be overturned on the blog? or like Alito's crafty caginess appears to many, do you have to be very quiet about that until the majority is on the court to do it? see that's the kind of thinking you are encouraging.
11.9.2005 2:09pm
David M. Nieporent (www):
Notwithstanding the overreaction to the name of a movement, does anyone here suggest that there is not a movement, perhaps one might more aptly call it "originalism", that seeks to do most of the things Reverend Jackson has delineated.
Yes.

The things "delineated" by Jackson include "They want to roll back not only the privacy doctrine on which women's right to choose rests, but the Warren Court's rulings and those of the Roosevelt Court also. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was struck down as exceeding congressional power and when states' rights were exalted."

Yes, I doubt there's a movement to do that.
11.9.2005 2:35pm
John H (mail) (www):
Is the "Guilded Age" before corporations were declared to have all the rights of a person? Or was that the decision that ushered in the Guilded Age? I'd like to revisist that decision...
11.9.2005 3:33pm
Fernie (mail):
I think there are some misstatements here. It's about Jackson, who is an idiot in exile--or should be in exile.

And, so far as the "gilded," I would submit that word should be replaced by "gelded" and Mista Jesse should be recipient of the procedure.
11.9.2005 4:22pm
guest:
I like how everyone who is a member of the CIE movement denies it exists. I don't know why they do, b/c there clearly is a CIE movement, and denying it only makes the CIE proponents look like they have something to hide or be ashamed of (like the WH disavowing federalist society links).
11.9.2005 6:00pm
Annette Gordon-Reed (mail):
I'm only an occasional browser onto this site, and usually find interesting and useful discussions here; but what's with the implication that Jesse Jackson is too dumb to read and know of ideas being bandied about in public discourse? What's with the "Mista" Jackson business? Is this the way black people get talked about here?
11.9.2005 10:05pm
Leonard (mail) (www):
Here's another libertarian who loves the sound of CIE. Even if we didn't really invent it, we should grab it with both hands.

The phrase "lost Constitution" suggests that there was no particular reason the Constitution as written is no longer pertinent - it just got lost. Like change in a sofa. Noone in particular to blame, and maybe not even a bad thing. Things happen. Constitutions get lost. So what?

Whereas the "Constitution in Exile" suggests (a) the old Constitution was legitimate - you don't exile imposters; you just unmask them; and (b) it got overthrown. Evicted from the polity, presumably in a coup of some sort. It's not a passive thing that just happened; it was caused by specific men who had certain objectives in doing so. Well, that's much closer to the case than the suggestion that it got lost.
11.10.2005 12:39pm
Visitor Again:
I'm only an occasional browser onto this site, and usually find interesting and useful discussions here; but what's with the implication that Jesse Jackson is too dumb to read and know of ideas being bandied about in public discourse? What's with the "Mista" Jackson business? Is this the way black people get talked about here?

Sometimes. Which is one of the reasons I posst as a guest rather than as a registered user. I don;t want to be seen as endorsing it. The people who run the website are quick to pounce on what they view as bad words, but this kind of stuff they freely allow.
11.10.2005 1:03pm
Shelby (mail):
what's with the implication that Jesse Jackson is too dumb to read and know of ideas being bandied about in public discourse? What's with the "Mista" Jackson business? Is this the way black people get talked about here?

No, it's the way manipulative racist bastards get talked about here. Mr. Jackson's race is not the source of his treatment here; his words and actions are.
11.10.2005 5:05pm
Owen Hutchins (mail):
Every time I hear someone complaining of courts finding rights that aren't in the Constitution, I have to wonder; how does an "originalist" interpret the 9th amendment?
11.10.2005 7:32pm
Annette Gordon-Reed (mail):
Well, "manipulative racist bastards" can still read and be up on the issues of the day. In fact, for many of them, their careers depend upon doing both of those things. One can disagree vehemently with a person's politics without thinking him or her ignorant. Again, I don't come to the site often, but I just didn't get the impression from my few visits that this "Mista" Jackson and "Wow, Jesse Jackson is capable of knowing something I know" business was the order of the day. I do think race played into the way this subject matter was presented. We'll just have to agree to disagree and leave it at that.
11.10.2005 10:07pm
sirromdivad (mail):
Owen,

Re: how an originalist might interpret the 9th Amendment, try: http://volokh.com/posts/1125319088.shtml

David
11.13.2005 5:30pm

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