Posted by Orin Kerr:
The Constitution-in-Exile Myth Returns:
I just finished reading the [1]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 [2]here
and [3]here, and also having discussed it a bit with Rosen during his
research into the piece, I wanted to add a couple of thoughts.
Approached from a purely analytical standpoint, 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 entralled
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 [4]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.
The question is, why is the New York Times interested in the
decades-old writing of a handful of libertarian legal scholars and
activists whose ideas haven't been embraced by the Bush Administration
or found any traction in the courts?
I have enabled comments. As always, civil and on-point comments
only.
References
1. http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html?
2. http://volokh.com/archives/archive_2004_12_26-2005_01_01.shtml#1104346631
3. http://volokh.com/archives/archive_2005_01_02-2005_01_08.shtml#1104780413
4. file://localhost/var/www/powerblogs/volokh/posts/1113766638.html
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