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The Constitution in Exile, Take 2:
You've read about the conservative version, whether fact or fiction; now try the liberal one.

  UPDATE: Amusingly, back in 2005, I wrote about how you could imagine a version of the "constitution in exile" meme that treated the "Constitution in 2020" conference as important to the liberal version of the "movement." The imaginary critique included this paragragph:
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."

Related Posts (on one page):

  1. Rosen on (Progressive) Judicial Minimalism and Obama:
  2. The Constitution in Exile, Take 2:
MarkField (mail):
Jack Balkin's take on Rosen's article is here.
5.31.2009 12:40pm
Mori Kopel (mail):
Since it doesn't constrain the state the liberal Constitution in Exile needs only four words: "Let there be justice."
5.31.2009 12:40pm
drunkdriver:
I must say that such language as But though the courts ought to take their cues from representatives of the people — and from popular political movements — judges still have important work to do in giving convincing legal expression to those sentiments. "In a democratic society," Balkin and Siegel write, "courts best perform their institutional role as partners in a larger dialogue: they respond to popular visions of the Constitution's values and help to translate these values into law" lends itself to parody quite easily.
5.31.2009 12:43pm
JonC:
Rosen writes:


The ideological antithesis of Warren Court liberals are Reagan-era conservatives like Justice Antonin Scalia, who argue that the Constitution should be "strictly construed" in light of its original meaning.


(emphasis added) If Rosen wants to argue as a general matter that there is such a thing as "strict constructionism" and that the adherents of this school believe the opposite of "democratic constitutionalism," that's one thing. But this passage, as written, is a mischaracterization of Justice Scalia's views. Scalia does not "argue . . . that the constitution should be 'strictly construed'", but rather has explicitly disavowed the strict constructionist label. Less-savvy commentators often resort to this kind of shorthand, but Rosen ought to know better.
5.31.2009 1:05pm
krs:
Rosen says a lot of things...
5.31.2009 1:10pm
dmv (www):

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."

Sign me up for the transformation. It's pretty disgusting what the Supreme Court did to the 14th Amendment in the aftermath of Reconstruction.

Of course, I completely disagree with the notion of the Constitution "in exile." The pristine, pure, perfect (and liberal friendly) Constitution is not waiting on the legal island of Elba for her followers to vanquish reactionary forces and thus to secure once again her rightful place in American life and law.

Then again, I'm not one of those liberals who has taken up the mantle of originalism (or one of its 31 flavors) for the progressive cause(s). So I guess I wouldn't see the Constitution as somehow being in exile.
5.31.2009 1:45pm
Cato The Elder (mail):
Scary.
5.31.2009 2:05pm
Leo Marvin (mail):

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.

I appreciate the satire, but I also think re-considering our conceptions of equality is always a worthwhile idea. One good place to start, though I don't necessarily agree with all of it, is here.
5.31.2009 2:47pm
PeteP (mail):
"to reconceive the meaning of equality." doubtless means 'results-driven', as in Ricci ? That's not 'equality', that's socialism driven by superficial statistics.

To say that 'There are x many indivudals of this group, and y of that goup, in the base, therefore the results of everything must reflect that proportion' would have been ABHORRENT to the Founding Fathers.

Equality in this country is supposed to mean 'Equality of opportunity, based in equality of freedom', not 'government mandated quotas and satisfaction of perceived artificial statistical 'norms'.

"One scholar urges that the Constitution must be reconceived to serve "a basic purpose: the protection of human dignity." " - I say that it already does that, and that 'human dignity' is not served by hand-outs and 'equalitzation of result metrics' but by allowing everyone to MAKE THAT THEY CAN OF THEMSELVES.
5.31.2009 5:45pm
Eric Rasmusen (mail) (www):
I'd like to see someone put together a conservative version of the liberal version. It would say the Constitution says things such as:

1. No state can make abortion or homosexuality legal, as that is contrary to natural law and justice.

2. The only penalty allowed for murder is death, since otherwise we devalue life.

3. Laws regulating freedom of contract are invalid.

4. The courts can invalidate any expenditures that are clearly designed to help only one locality at the expense of the rest of the nation.

5. Any tax or expenditure designed primarily to redistribute income is unconstitutional.

Liberals can't even conceive of what a truly activist conservative court would do. It would be good to let them know that if conservatives ever give in and go with liberal procedural principles, liberals might regret it.
5.31.2009 9:38pm
Norbert Sluzewski (mail) (www):
I have shared some of my thoughts on this and related issues in my articles at http://www.nakedliberty.com
5.31.2009 9:59pm
ArthurKirkland:

1. No state can make . . . homosexuality legal, as that is contrary to natural law and justice.


If homosexuality is contrary to natural law and justice, what about chemotherapy, boner pills*, contact lenses and hearing aids? Some mighty unnatural concepts there. The "natural" state is for infections to kill, the clearsighted to be preferred, and guys on weekend trips to the Dominican to make do without big bags of contraband pills.

If the Bible is the source of insight regarding the unnatural and unjust nature of homosexuality, I gather that shrimp cocktails and Gillette razors are abominations, and that greedy and rich people are at least as damnable as homosexuals.

I agree on one point: Few liberals would conceive of the laws described . . . few conservatives and few libertarians, too. Few Americans, period.

*I tried to use a brand name, but the VC filter barred it.
5.31.2009 11:49pm
Jon Roland (mail) (www):
Eric Rasmusen:

I'd like to see someone put together a conservative version of the liberal version.

How about a libertarian version? After all, we seem to be the ones closest to original understanding. We also seem to be the ones with the best ideas for actually solving problems in ways that are constitutional.

My draft amendments to the U.S. Constitution have been further revised, in competition with Randy Barnett's set.
6.1.2009 12:56am
Randy R. (mail):
"Equality in this country is supposed to mean 'Equality of opportunity, based in equality of freedom', not 'government mandated quotas and satisfaction of perceived artificial statistical 'norms'. "

totally agree. But even under this scenario, we don't necessarily have equality of opppotunity in the US. For instance, our schools are funded by local property taxes, which result in far fewer resources for inner cities as compared to affluent suburbs. If we truly want equality of oppotunity, then all students in the nation should have access to the same quality of schooling, and that's a bit too radical for most Americans to accept.
6.1.2009 1:36am
Jon Roland (mail) (www):
Randy R.:

If we truly want equality of oppotunity, then all students in the nation should have access to the same quality of schooling

Having actually taught in public schools, I can report that educational outcomes have very little to do with how much money is spent for it. If kids want to learn, little can stop them, and if they don't, little can make them. I grew up with kids who wanted to learn, at a time and place when far less was spent on us than is spent at even the poorest inner city schools today. We had many good teachers, and some bad ones, and learned with either. Made little difference.

If you want equal opportunity, give kids equally good parents, put them under the supervision of good role models, and isolate them from other kids. The enemies of good education are other kids.
6.1.2009 2:27am
/:
If we truly want equality of oppotunity, then all students in the nation should have access to the same quality of schooling


No... equal opportunity is allowing all individuals to fend for themselves, especially in making voluntary choices and connections, eg in decisions on how to fund "essentials." An ISD may request school fees in an area, but residents would have to agree to pay them for it to work. Charity and insurance plans would naturally play a part, depending on the merits and risks involved.

Of course, this all assumes that certain groups of people aren't tasked with voting other groups of people out of existence.
6.1.2009 7:54am
Leo Marvin (mail):
Jon Roland,

Having actually taught in public schools, I can report that educational outcomes have very little to do with how much money is spent for it. [...]

If you want equal opportunity, give kids equally good parents, put them under the supervision of good role models, and isolate them from other kids. The enemies of good education are other kids.

That's a false dichotomy. The factors you mention are important, and so is funding. It's no coincidence that when California spent the most, more or less, it got more or less the best results, and that now that it spends near the bottom, the results are commensurate.
6.1.2009 4:53pm
Leo Marvin (mail):
/:

No... equal opportunity is allowing all individuals to fend for themselves, especially in making voluntary choices and connections, eg in decisions on how to fund "essentials."

I saw a good movie about that. It was called Road Warrior.
6.1.2009 4:56pm
/:
I saw a good movie about that. It was called Road Warrior.


Yes. You are absolutely correct. Government (or simply collective action by force) is the only thing standing between, on one hand my children being fed properly and receiving an education, and on the other hand post-technological gang wars over gasoline to fuel our vandals' motorcycles.

Phew! That sure takes me off the hook for parenting! Got anything in that bag of tricks for white guilt?
6.1.2009 8:42pm
Leo Marvin (mail):
/:

Government (or simply collective action by force) is the only thing standing between, on one hand my children being fed properly and receiving an education, and on the other hand post-technological gang wars over gasoline to fuel our vandals' motorcycles.

Good. So far we agree.

Phew! That sure takes me off the hook for parenting! Got anything in that bag of tricks for white guilt?

Yeah. Keep telling yourself we have no obligation to give poor kids the essentials.
6.2.2009 2:50am
/:
Yeah. Keep telling yourself we have no obligation to give poor kids the essentials.


One people.
One country.
One leader.
6.2.2009 4:30am
Leo Marvin (mail):
/:

Depending on where you are it's either too late or too early for respectable people to be awake.
6.2.2009 5:45am
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