Posted by Orin Kerr:
Is "The Constitution in Exile" A Myth?:
In a [1]book review in the latest issue of The New Republic, Cass
Sunstein renews his claims that "[t]here is increasing talk [among
conservatives] of what is being called the Constitution in Exile --
the Constitution of 1932, Herbert Hoover's Constitution before
Roosevelt's New Deal." Sunstein has suggested this a number of times
before (see, e.g., [2]here and [3]here), and the claim has been
repeated recently by [4]The New York Times and by my colleague
[5]Jeffrey Rosen. The suggestion is that influential conservative
lawyers express their goal for the courts as being the restoration of
"the Constitution in Exile."
I hope VC readers will pardon me for focusing only on a question of
terminology, but I can't recall ever hearing a conservative use the
phrase "the Constitution in Exile." I asked a couple of prominent
conservatives if they had ever heard the phrase, and they had the same
reaction: they had never heard the phrase used by anyone except Cass
Sunstein and those discussing Sunstein's claims.
As best I can tell, the phrase "Constitution in Exile" originally
appeared in a [6]book review by D.C. Circuit Judge Douglas H. Ginsburg
in 1995 in the course of discussing the nondelegation doctrine in the
journal Regulation. As you can see from the article itself, the use of
the phrase is not exactly prominent: it appears once, near the end of
the introduction. In any event, the use of the phrase in Ginsburg's
review inspired lots of critical commentary from legal academics,
including its own symposium in the Duke Law Journal (you can read the
Foreward to the symposium issue [7]here). But my initial google and
Westlaw research failed to uncover direct evidence -- beyond the
initial book review, which I just read today -- that conservatives or
libertarians have used this phrase to describe their goals.
Why does it matter, you wonder? After all, some on the right do want
the Supreme Court to bolster some constitutional doctrines that the
Court deeemphasized in the post-New Deal era. Critics could decide
that they think this agenda should be described as amounting to a wish
to restore the Constitution in Exile. But if I understand it
correctly, Sunstein's claim is different: the claim is that
conservatives themselves use the phrase -- "right-wing activists . . .
talk about restoration of the 'Constitution in Exile'." The difference
matters, I think, because describing something as being "in exile"
suggests recognition of a revolutionary agenda. If a government is
overthrown and the old leaders flee but remain intact, referring to
the old leaders as "the government in exile" suggests that the old
government is just biding its time before it can launch a
counterrevolution. The rhetorical power of Sunstein's claim lies in
its suggestion that conservatives see their own goals as truly
revolutionary. If the phrase is not actually used by conservatives,
but rather is a characterization by their critics, I think that makes
a notable difference.
I have enabled comments. I am particularly interested in uses of the
phrase "Constitution in Exile" by conservatives that I may have
missed. (This isn't my specialty area, so it's quite possible that it
is in fact used and I just missed it.) Also, if the comment function
isn't working, [8]try leaving a comment here.
References
1. http://www.tnr.com/doc.mhtml?pt=nPARJgZTdn1W1gbKXr2QDk==
2. http://www.washingtonmonthly.com/features/2004/0409.sunstein.html
3.
http://www.legalaffairs.org/issues/March-April-2003/feature_marapr03_sunstein.html
4. http://www.nytimes.com/2004/12/14/opinion/14tue4.html?oref=login
5. http://www.tnr.com/doc.mhtml?pt=KbUs8%2Bpt6JmKm1DN2Pshdh%3D%3D
6. http://www.cato.org/pubs/regulation/reg18n1f.html
7. http://www.law.duke.edu/journals/dlj/articles/dlj51p1.htm
8. http://volokh.powerblogs.com/
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