Kaimi Wenger has blogged last Friday’s AALS session entitled “The Constitution in Exile”, featuring Cass Sunstein and our own Randy Barnett. I attended the session, and have a few additional thoughts:
(1) When pressed on whether there is a “Constitution in Exile” movement that dominate Republican legal circles, Sunstein consistently relied on an argument from authority: Doug Ginsburg, who should know, says there is. As Wenger notes, when pressed further, Sunstein argued
first that “there is a movement, but Randy isn’t part of it;” Who then comprises the movement? He mentioned unnamed persons in the Meese justice department; unnamed Republicans; “fundamentalists.” He asserted that this group comprises a “monolithic political movement.”
However, if we go back to what Ginsburg actually wrote in his now-famous book review, he is clearly referring to a small, lonely group of academics, not the mainstream of the Republican conservatism:
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.
What Ginsburg is actually describing as of 1996, it seems to be, is University of Chicago Professor Richard Epstein, who admittedly writes enough to practically be a movement unto himself, and perhaps a couple of other people. Who else among prominent “conservatives” (other than perhaps USD’s Siegan) wanted to revive Lochner v. New York (substantive due process)? It’s rather tendentious to ascribe views such as Epstein’s to the Meese Justice Department, which considered, and explicitly rejected, nominating Epstein to the Seventh Circuit because he was too “activist.” While I know Randy rejects the idea that he believes in a “constitution-in-exile,” as of 2005, other than Epstein, Randy would clearly be the most prominent proponent of reviving the doctrines mentioned by Ginsburg (though he’d substitute privileges or immunities for substantive due process). So, if there was a Ginsburgian “movement” (and there isn’t, and Ginsburg certainly didn’t call it a movement), Randy would be a charter member. If Randy isn’t part of such a movement, then there isn’t one.
(2) More generally, as I pointed out in my question at the session, not only is it impossible to find anyone who wants to restore constitutional law as it existed in 1937, mainstream Republican conservatives explicitly reject elements of that jurisprudence, including substantive due process (think not only Lochner, but Meyer v. Nebraska and Pierce v. Society of Sisters), and limits on executive power (Humphrey’s Executor). And the idea that President Bush–who has presided over the greatest increase in federal power since Lyndon Johnson–and his core supporters seek to overturn the New Deal, judicially or otherwise, flies in the face of the last five years of Republican rule. Can you even imagine W. saying “government isn’t the solution, government is the problem,” much less acting on it?
(3) Oddly,the “Constitution in Exile” meme has caught on, but the truth is far more damaging (and discouraging): the conservative majority of the Supreme Court has a general conservative trajectory, but within that trajectory is rather unprincipled and often seeks to accomplish conservative political goals even when they conflict with conservative judicial principles (e.g., the conservatives’ views on state sovereign immunity and, more controversially, affirmative action, are both “activist” and nonoriginalist). Only Justice Thomas makes even an attempt to adhere to a consistent conservative, originalist judicial philosophy, and Thomas and his radical views of constitutional interpretation only got past the Bush I White House because they needed someone to replace Thurgood Marshall.
Apparently, however, the same dynamic is going on with judicial politics as with economic policy: the Democrats, instead of criticizing the Republicans for their betrayal of their purported principle of limited government, instead attack them for allegedly engaging, or scheming to engage in, a brutal war against federal power. Of course, it has been brutal, in it’s own way, but only to supporters of limited government: after a decade and half of Republican control of the Court, the federal government can’t put you in jail for possessing a gun in front of a local public school–unless, of course, Congress specifically makes a finding that such possession has a substantial effect on interstate commerce.
*****”Constitution of Liberty”–Now there’s a name for a movement. Why do you think Sunstein et al. claim based on Ginsburg that there is a “Constitution in Exile” movement, not a “Constitution of Liberty” movement? Could it be that (1) the former sounds ominous, the latter sounds good; and (2) the latter makes it clear that Ginsburg was referring to a small group of libertarian scholars, not the broader conservative movement?
UPDATE: A reader suggested that I have debunked a “strawman” in defining the purported constitution in exile movement as including all constitutional doctrines as they were in 1937, not just the Commerce Clause and other federal power doctrines. But consider how Jeffrey Rosen’s influential NY Times magazine article on the subject begins: “Imagine that the interpretation of the Constitution was frozen in 1937.”
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