Hentoff Piece on the “Constitution in Exile”:

I don’t have time or energy to provide an extended critique, but, even aside from its adoption of the phony “Constitution in Exile” meme, this Nat Hentoff piece is extremely weak. For example, he conflates the tiny minority of legal scholars who support a revival of Lochner with the much greater number who think that the New Deal Court went too far in completely eviscerating the Constitution’s limits on federal regulatory power. Contrary to Hentoff’s suggestion, the strongest advocates of Lochner on the Court right now are not Thomas, Scalia, and Rehnquist, but Souter and Kennedy, who have consistently adopted the view, implicitly and explicitly, that the only thing wrong with Lochner was that it protected economic rights. By contrast, applying Lochnerian reasoning to matters of personal autonomy (and explicitly relying on the Lochnerian precedents of Pierce v. Society of Sisters and Meyer v. Nebraska, both decided at the height of the Lochner era and relying on Lochner itself) is perfectly acceptable. And it’s not at all clear, given his opinions on punitive damages, that Kennedy even completely accepts this limited critique of Lochner.

Ironically, Hentoff negatively contrasts the Rehnquist Court’s baby steps toward reviving the Constitution’s protections of federalism to liberals’ “Shadow Constitution… under which the government has affirmative obligations to alleviate inequality, protect people from harm…” Besides being part of the American constitutional tradition for 150 years before the New Deal, limitations on federal power at least have the virtue of actually being in the text of the Constitution. Perhaps to turn the rhetorical tables on the “Constitution in Exile” nonsense, conservatives and libertarians should start speaking of the superiority of enforcing the “Actual Constitution” as opposed to the “Shadow Constitution.”

UPDATE: Of course, not all liberals accept Hentoff’s view of the “Shadow Constitution.” As a reader reminded me via email, in his debate with Randy, Sunstein wrote, to his credit: “I don’t think the Constitution requires government to provide a decent minimum for all; if people are starving, the Constitution doesn’t require government to respond.”