Over at Legal Affairs, the Debate Club will be featuring a debate this week between Cass Sunstein and co-blogger Randy Barnett about the alleged Constitution-in-Exile movement. Only Cass has written so far, and his initial post strikes me as, well, odd. His post is very vague, but if I’m not mistaken he is suggesting that many or most judicial conservatives believe in some kind of radical vision of the Constitution in Exile. The key question seems to be which radical vision different conservatives like: as best I can tell, Sunstein is suggesting that some like Ginsburgian strike-everything-down radical activism, while others like Scalian uphold-everything radical activism. Huh? Well, I guess we’ll have to wait and see how the debate shakes out. Of course I’ll be particularly interested to see what my co-blogger Randy has to say. (Hat tip: Howard)
UPDATE: Randy posted his initial reply to Sunstein just I was posting. An excerpt:
Let me begin this week-long exchange, Cass, with a denial. There is no “Constitution in Exile” movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.
For obscure reasons that we may perhaps glean from this week’s debate, the phrase “Constitution in Exile” viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these “originalists” sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.
Sounds like it will be an interesting week over at Debate Club.
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