In a previous post on the purported (but non-existent) “Constitution in Exile movement,” I suggested that liberals who use the phrase are likely trying to imply not simply that some elite legal libertarians would like to revive constitutional limitations on government power that were enforced before the New Deal, but also that these scholars were hostile to all constitutional law jurisprudence that developed since the New Deal. But I noted:
Unlike conservative originalists, the more libertarian elements on the legal right–the folks that Rosen interviews for his piece–generally don’t have any nostalgia for the pre-New Deal or even pre-Warren Court jurisprudence on issues such as the Equal Protection Clause’s protection of minorities, the Incorporation of the Bill of Rights against the states, the First Amendment, etc.; I know that both Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too [update: Will Baude points out that Epstein has been critical of Roe and seems skeptical of Casey].
Now, Cass Sunstein writes:
Would the Constitution of 1787, or of 1920,* increase our liberty or diminish it? For now, let’s just notice the real radicalism of any effort to go in that direction. In 1787 and in 1920, racial segregation by the federal and state governments was believed to be constitutional. In 1787 and 1920, sex discrimination by government was just fine. In 1787 and 1920, there was no general right of privacy. In 1920, free speech was understood quite narrowly. Congress would almost certainly have been forbidden to protect workers’ right to strike. In 1920, minimum wage laws were unconstitutional.
But as co-blogger Randy points out in a response to Sunstein, there doesn’t seem to be anyone out there, liberal, conservative, or libertarian, who thinks that the pre-New Deal Supreme Court had things completely right, or even almost right. Conservative originalists object to the entire line of Lochner cases, including Meyer, Adkins, and Gitlow (see below). Libertarians (and many conservatives) think the Court had too narrow an interpretation of freedom of speech, and tunnel vision on issues of race.
But perhaps Judge Doug Ginsburg, originator of the “Constitution in Exile” phrase, is an exception, and he, and perhaps a secret group of acolytes, want to restore constitutional law to its state in 1930? Sunstein writes:
For Judge Ginsburg, and for some others, the court had the Constitution right in 1930. Judge Ginsburg also believes that the Constitution in Exile forbids Congress from “delegating” its authority to administrative agencies, such as the Environmental Protection Agency, by giving them broad discretion. Judge Ginsburg believes that since 1930, the Supreme Court has “blinked away” individual rights, above all the right to private property—and created rights of its own choosing, like the right to choose abortion.
But here is the sum total of what Judge Ginsburg has to say about the “Constitution in Exile”:
So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, 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.
I find it difficult to tease out of this paragraph–much less out of Ginsburg’s subsequent repudiation of the nondelegation doctine in the same piece–what Sunstein does.
*Sunstein uses 1920 advisedly, because by 1930–still pre-New Deal days, let’s keep in mind–the Court had dealt a blow to sex discrimination in Adkins v. Children’s Hospital (later reversed by a New Deal Court decision), and Meyer v. Nebraska in 1923 had recognized broad liberty rights under the Due Process Clause, likely including a version of the right to privacy, but New Deal decisions had cabined such rights dramatically until Griswold v. Connecticut in 1965. So, if anything, in at least some ways the pre-New Deal Court was far more agreeable to Sunstein on “liberty” issues than was the New Deal Court. (And the Court’s broader free speech jurisprudence began with Gitlow in 1925.)
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