The Myth of the “Constitution-in-Exile” Movement

Pejman Yousefzadeh has a nice column on The Myth of the “Constitution-in-Exile” Movement up on Tech Central Station. Here is how it begins:

Last week, I wrote about the conspiracy-mongering regarding the existence and function of the Federalist Society that has become part of the judicial confirmation wars and has emerged as a major talking point against right-of-center judicial nominees. There is another conspiracy-mongering campaign that is designed to serve the same purpose and it has something to do with an alleged “Constitution-in-exile” movement of conservatives and libertarians determined to bring about wholesale changes in the American legal and political structure.

I would add that a major difference between “Restoring the Lost Constitution” and a “Constitution-in-Exile”—as defined by those who are using this term—is that whereas they imagine a desire by conservatives and libertarians to return to a list of pre-1937 results, the real desire is to restore portions of the Constitution that have been systematically redacted in the name of expanded government power at both the state and national levels. Of course, restoring the Commerce Clause, Necessary and Proper Clause, Second Amendment, Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment would certainly yield “results” I think are favorable, these results would hardly comport with some list of pre-1937 doctrines. Ironically, some of the Court’s current doctrines are better grounded on the original meaning of these clauses than they are on distorted readings of other clauses. For those who may have missed it at the time, I debated Cass Sunstein on the “Constitution-in-Exile” meme on LegalAffairs.com. There I greatly expand upon the issues I raise in this post, so, if you have any questions, you should probably check out that debate.