The Volokh Conspiracy - Where Did the Idea of a "Constitution in Exile" Movement Come From?:

As long-time readers of this blog know, Randy, Orin, and I have spent many a post (e.g.) debunking the notion that there is a right-wing self-styled "Constitution in Exile" movement plotting to return the Supreme Court to its pre-New Deal constitutional jurisprudence.

Last time I blogged about this, a commenter asked a pertinent question: given that the only apparent source for this "movement" was an obscure, offhand use of the phrase "Constitution in Exile" by Judge Douglas Ginsburg in a book review in the low-circulation journal Regulation, how did liberal critics become convinced that such a movement exists?

I think I've stumbled upon the answer--Linda Greenhouse. Greenhouse wrote the following in the New York Times on May 28, 1995:

Recent events at the Court have moved that struggle to a new plane. Two 5-to-4 decisions in the last month suggest that a long-discarded set of constitutional principles — a "Constitution-in-exile," to use a phrase coined by one of its advocates, Judge Douglas H. Ginsburg of the Federal appeals court here — is about to assume its place at the table as a reincarnation of the Constitution that was.

Greenhouse made two errors here. First, there is no indication that there was a group of "Constitution in Exile" advocates out there, among who Judge Ginsburg was just one member. Second, as Orin has pointed out, Ginsburg actual criticized constitution in exilish thinking:

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...

So, in the legal equivalent of the butterfly effect, sloppy (or perhaps tendentious and dishonest) journalism by a New York Times reporter leads to ridiculous claims over a decade later, such as that a McCain victory in 2008 would have led to a victory for "activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile."

	[David Bernstein, February 19, 2009 at 4:05pm] Trackbacks Where Did the Idea of a "Constitution in Exile" Movement Come From?: As long-time readers of this blog know, Randy, Orin, and I have spent many a post (e.g.) debunking the notion that there is a right-wing self-styled "Constitution in Exile" movement plotting to return the Supreme Court to its pre-New Deal constitutional jurisprudence. Last time I blogged about this, a commenter asked a pertinent question: given that the only apparent source for this "movement" was an obscure, offhand use of the phrase "Constitution in Exile" by Judge Douglas Ginsburg in a book review in the low-circulation journal Regulation, how did liberal critics become convinced that such a movement exists? I think I've stumbled upon the answer--Linda Greenhouse. Greenhouse wrote the following in the New York Times on May 28, 1995: Recent events at the Court have moved that struggle to a new plane. Two 5-to-4 decisions in the last month suggest that a long-discarded set of constitutional principles — a "Constitution-in-exile," to use a phrase coined by one of its advocates, Judge Douglas H. Ginsburg of the Federal appeals court here — is about to assume its place at the table as a reincarnation of the Constitution that was. Greenhouse made two errors here. First, there is no indication that there was a group of "Constitution in Exile" advocates out there, among who Judge Ginsburg was just one member. Second, as Orin has pointed out, Ginsburg actual criticized constitution in exilish thinking: 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... So, in the legal equivalent of the butterfly effect, sloppy (or perhaps tendentious and dishonest) journalism by a New York Times reporter leads to ridiculous claims over a decade later, such as that a McCain victory in 2008 would have led to a victory for "activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile."