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.

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