Posted by David Bernstein: Rosen on the "Constitution in Exile": I�m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen�s [1]N.Y. Times magazine piece on the purported "Constitution in Exile" movement.
Jeff was a Yale Law classmate of mine, and I'm generally a great admirer of his work. But I do want to take issue with a couple of things in this particular piece. First, I take issue with the whole idea that there is a "Constitution in Exile movement," as such. "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to mutter about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile." Yet, outside of Ginsburg�s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article. I acknowledge that some Federalist types, including me, do believe that various pre-New Deal constitutional doctrines should be revived. But let's be clear on the fact that the idea that there is some organized "Constitution in Exile movement," that is in fact using that phrase is pure fiction. Why does this matter? Because the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves. Would I, for example, be considered a member of the "Constitution in Exile movement" even though I don't buy Epstein's theory of the Takings Clause, and think Lochner was probably wrongly decided? Second, Jeff refers to Cass Sunstein as someone who "describes himself as a moderate." Come on, Jeff. Sunstein is, in American political terms, an ultra-liberal, his weak attempt at feigning moderation to give himself more credibility in critiquing libertarians notwithstanding. His strong ideological leftism, is, indeed, why he�s helped perpetuate the "Constitution in Exile movement" myth. Why cooperate with Cass�s whitewashing of his political views? Jeff is no legal neophyte, and is perfectly well aware that Sunstein is no moderate, at least once one steps outside the bizzaro world of academia. Finally, Jeff, while not explicitly critical of libertarian constitutional theory, does seem to be implicitly raising the alarm regarding potential future conservative or libertarian judicial activism. I hope it's not impolite to mention that this alarm-raising comes with a touch of irony from someone whose first published law review work defended the proposition that the Ninth Amendment protects judicially enforceable natural rights, and, moreover, that courts should refuse to enforce a constitutional amendment banning flag-burning, because such an amendment would itself be an unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991). References 1. http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html? _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
