I had thought that the nomination of John Roberts had finally put to rest fears of the mythical Constitution-in-Exile movement. Over at Slate, however, UVa lawprofs Risa Goluboff and Richard Schragger argue that the possible ascendance of the Constitution-in-Exile might lead the Supreme Court to strike down FEMA and the Department of Homeland Security, hobbling future hurricane relief efforts:
The Constitution in Exile sees government as the enemy of individual rights. It insists that the preservation of such rights requires that government refrain from amassing power. And the individual rights it deems paramount are those of property and contract—rights that, if taken to the lengths the conservative jurists propose, would hobble government power as we now know it.
. . .
Were the Constitution in Exile to return to its allegedly rightful home in the Supreme Court, the national government would likely be prevented from taking on responsibility for any future Katrinas. After such a horrific display of what happens when the nation faces a disaster of national proportions and the national government falls short, it is clear that Judge Roberts, and Sandra Day O’Connor’s replacement, should be asked if they endorse such a vision.
Given that the Constitution-in-Exile movement doesn’t exist, I think it’s fine if Senators ask this question. Roberts and whoever is nominated to replace O’Connor will just say “no,” and then the Senators can move on to the next question.
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