Posted by Orin Kerr:
Cass Sunstein Responds to "Constitution in Exile" Post:
Last week I wrote a post "[1]Is the 'Constitution in Exile' A Myth?,"
questioning claims that an influential block of conservatives have an
agenda for the courts that they themselves describe as restoring the
"Constitution in Exile." I noted that I could only find one use of the
phrase "Constitution in Exile" by a conservative -- a single comment
buried in a 1995 book review by Judge Douglas Ginsburg. I asked
whether the phrase "Constitution in Exile" was something that
conservatives actually used, or rather was merely a phrase that
critics (most notably Cass Sunstein) have used to describe what they
contend is a growing conservative legal movement.
Cass Sunstein e-mailed me a response, which he has graciously agreed
to let me post:
As you say, the phrase comes from Chief Judge Ginsburg of the DC
Circuit, in a piece in Regulation magazine. Without using the
phrase, he also spells out his argument in some detail in a
remarkable piece on constitutionalism in the Supreme Court Economic
Review, from the Cato Institute. This piece has been given as a
lecture at several places, including the University of Chicago Law
School, where a packed room gave it respectful attention.
A glimpse of the argument: Judge Ginsburg writes that judges were
faithful to the Constitution for most of the nation's history -
from the founding, in fact, through the first third of the
twentieth century. But sometime in the 1930s, "the wheels began to
come off." His strongest complaint is about the Supreme Court's
decision, in 1937, to uphold the National Labor Relations Act.
Judge Ginsburg objects that this is "loose reasoning" and "a stark
break from the Court's precedent." In his view, the Court's
acceptance of the National Labor Relations Act is not merely
"extreme"; it is also "illustrative."
Randy Barnett's powerful book, Restoring the Lost Constitution,
is definitely in the same general vein (consider the title!); so
too is some of the work of my colleague Richard Epstein, especially
but not only on the commerce power. So too for much conservative
writing on the nondelegation doctrine. Justice Thomas writes
significant opinions that support the general goal (restoring the
lost constitution, or what Judge Ginsburg calls the Constitution in
Exile), as of course you know; and Scalia is often with him.
The idea of the lost Constitution, or the Constitution in Exile,
or the original constitution, is very prominent in the conservative
community. In fact the idea of originalism goes hand-in-hand, for
many people, with the idea of a Constitution in Exile, whether or
not that phrase is used. I think the Constitution in Exile phrase
is especially evocative, and I admire Judge Ginsburg a great deal
(despite major disagreements on this point). But the goal is what's
important, not the specific term, and it seems to me that we've all
witnessed the rise of that goal, especially in the last decade or
so, with the increasing assertion of a certain form of originalism.
I have two responses, one narrow and the other broader. The narrow
point is that I understand Sunstein as agreeing that there is no
evidence that a conservative has used the phrase "Constitution in
Exile" outside of a single reference in a 1995 book review. On this
point, my apologies to Professor Sunstein if I simply misread his
prior writings; I had understood Sunstein to be claiming that
conservatives are themselves using the phrase "the Constitution in
Exile" to describe their legal goals. To the extent that we are in
agreement that the term is primarily Sunstein's, and has not been used
by conservatives outside of a 1995 book review -- and even then,
apparently only as a descriptive matter, not as a normative one --
then that addresses the topic of my prior post. This is an important
point of consensus, I think: we can all agree that there is no
evidence that conservatives refer to their agenda for the courts as
restoring a Constitution in Exile.
Now, let's turn to the broader question, one that I did not address
in my first post: terminology aside, is there a conservative movement
to restore a pre-New Deal constitution? Unfortunately, I am not the
best person to answer this: I am not a constitutional theorist, don't
really follow the literature, and don't teach constitutional law. Nor
do I know how you measure when a certain amount of writing or
scholarship amounts to a "movement." If there is a conservative
movement to restore a constitution in exile, however, it is news to
me. I can think of a handful of conservative law professors who have
some pretty far-out views about how to reshape constitutional law, but
I tend to think that this says more about constitutional theory in
legal academia today than it does about any "movement" in conservative
legal circles. Nor do I see how their claims amount to wanting
wholesale restoration of the pre-New Deal constitution. Perhaps part
of the problem is that I don't see the direct connection between
originalism and restoring a constitution in exile. I see the former as
a mode of constitutional interpretation, and one that leaves open a
reconciliation with stare decisis. The latter apparently would dismiss
stare decisis and attempt to reconstruct a very particular
constitutional order.
Some readers will agree with Sunstein that there is in fact a
conservative constitution-in-exile movement. But if you take this
position, don't you have to agree that there is a liberal
constitution-in-exile movement, too? Here's a thought experiment to
show you what I mean. Let's imagine Cass Sunstein has a cousin who is
identical to Sunstein in every way except one: he is a conservative.
This conservative version of Sunstein - let's call him Moonstein -
could write something like this:
There is increasing talk among liberals of what is being called
"the Constitution in Exile" -- the Constitution of the 1960s,
Justice Brennan's Constitution. Their target is Ronald Reagan and
the Bushes, who they claim pushed a false Constitutional vision
designed to strip the Bill of Rights of its essential guarantees
and emphasize property rights over human rights. They have set as
their goal the restoration of the progressive Constitution forced
into exile by by a string of Republican presidencies starting in
1968.
The organizing strategy behind the liberal Constitution in Exile
movement was explained by Professor Mark Graber in a 2002 law
review article, Rethinking Equal Protection in Dark Times, 4 U. Pa.
J. Const. L. 314 (2002). Graber urged his fellow liberals to plot
for the return of the progressive "constitution in exile." He
wrote: "Progressive arguments . . . are best understood as
constructing shadow constitutions or constitutions-in-exile.
Parties out of power in many nations form shadow cabinets. These
bodies consist of the persons who might hold various executive
offices when that coalition gains control of the government. The
American equivalent apparently is the shadow constitution. Scholars
out of power in the United States author various shadow
constitutions that detail the constitutional meanings that might
become the fundamental law of the land should the author's
preferred coalition gain control of the federal government."
Restoring the liberal Constutitution in Exile has become an
increasingly dominant theme of progressive legal thinkers. For
example, a collection of some of the nation's most prominent
progressive legal minds (including Cass Sunstein) will be meeting
at Yale Law School in the spring to develop "a shared vision of
what, at least broadly speaking, that Constitution in Exile is, so
that we can support and work for its realization." A [2]website and
[3]blog set up for the conference reveals the agenda. For example,
Bruce Ackerman sets as one of the more modest items on the agenda
to "[r]oot out the federalism decisions since Lopez, and return to
the status quo, circa 1994. Root all of them out, not some of
them." His more "transformative" agenda would include "overrul[ing
the] Slaughterhouse [cases] and mak[ing] the [Privileges and
Immunities] Clause the basis for fundamental positive rights of
citizenship." Other scholars at the conference urge a new
Constitution entirely. One scholar urges that the Constitution must
be reconceived to serve "a basic purpose: the protection of human
dignity." Another contends that the law must "revisit both the
14/19th amendments and the general welfare clauses so as to take on
the deep inequalities of the contemporary social order inside the
United States, to reconceive the meaning of equality."
A fair response to Moonstein might note that Moonstein is
cherry-picking a few comments and imagining that these professors have
real influence in order to create the impression of a major movement
afoot. The fact that a few law professors are arguing in favor of
major constitutional change shouldn't be terribly surprising: that's
what constitutional law professors do, right? My sense is that the
same criticism applies to Sunstein and claims of a conservative
constitution-in-exile movement.
I have enabled comments. Please, civil and respectful comments only.
References
1. http://volokh.com/posts/1104346631.shtml
2. http://islandia.law.yale.edu/acs/conference/index.asp
3. http://constitutionin2020.blogspot.com/
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