I just finished reading the New York Times piece by my friend and colleague Jeffrey Rosen on the alleged "Constitution in Exile" movement. Having written on this topic a few months ago, see here and here, and also having discussed it a bit with Rosen during his research into the piece, I wanted to add a couple of thoughts.

  In my view, the problem with Rosen's essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential "movement." I don't think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn't.

  Rosen downplays this problem, but I think a close look at the evidence reveals that Rosen is stretching. For example, here is what Rosen says about the influence of the alleged C-I-E movement in the current administration:

  The influence of the Constitution in Exile movement . . is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.''

  So the best we can do is get the view of one anonymous person that other mostly unnamed people believe in a set of principles that the anonymous person says match the views of this alleged movement? Surely the last four years of Bush 43 would have provided more concrete evidence than that. As for Addington, note what Rosen does not: that while Addington in the Vice President's office urged DOJ to take a position that may or may not have reflected the influence of the alleged movement, DOJ apparently refused all of these urgings. So much for influence.

  Rosen also overplays his hand in describing the development of the alleged movement. Consider his description of Douglas Ginsburg's 1995 essay that apparently contains the only known use of the phrase "Constitution In Exile" by a conservative or libertarian. Rosen portrays the essay as a manifesto urging an eager audience to take action:

  By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging.
  In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of ''the Constitution in Exile.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''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.''

  If you go back and read the actual article, though, a different picture emerges. Ginsburg's alleged manifesto was a review of a book by David Schoenbrod arguing for the return of a strong nondelegation doctrine in constitutional law. The bit about the Constitutution in Exile is a two-sentence paragraph at the end of Ginsburg's introduction, before he turns to Schoenbrod. Ginsburg doesn't applaud Schoenbrod's Constitution-in-Exile-ish proposal, however; he is quite critical of it. Ginsburg's review argues that the answer to the policy concerns raised by excessive delegation is not constitutional law, but statutory law: he embraces an idea introduced by Justice Stephen Breyer in a 1984 article in the Georgetown Law Journal that expensive regulations should require affirmative Congressional approval. While Rosen says Ginsburg called for a resurrection of the Constitution in Exile, Ginsburg actually recommended Congressional adoption of a proposal made by that right-wing radical Stephen Breyer.

  I have enabled comments. As always, civil and on-point comments only.