Posted by David Bernstein:
More on the "Constitution in Exile":
In [1]a previous post on the purported (but non-existent)
"Constitution in Exile movement," I suggested that liberals who use
the phrase are likely trying to imply not simply that some elite legal
libertarians would like to revive constitutional limitations on
government power that were enforced before the New Deal, but also that
these scholars were hostile to all constitutional law jurisprudence
that developed since the New Deal. But I noted:
Unlike conservative originalists, the more libertarian elements on
the legal right--the folks that Rosen interviews for his
piece--generally don't have any nostalgia for the pre-New Deal or
even pre-Warren Court jurisprudence on issues such as the Equal
Protection Clause's protection of minorities, the Incorporation of
the Bill of Rights against the states, the First Amendment, etc.; I
know that both Barnett and Epstein, for example, think Griswold was
correctly decided, and probably think Roe, or at least Casey, was
too.
Now, Cass Sunstein [2]writes:
Would the Constitution of 1787, or of 1920,* increase our liberty
or diminish it? For now, let's just notice the real radicalism of
any effort to go in that direction. In 1787 and in 1920, racial
segregation by the federal and state governments was believed to be
constitutional. In 1787 and 1920, sex discrimination by government
was just fine. In 1787 and 1920, there was no general right of
privacy. In 1920, free speech was understood quite narrowly.
Congress would almost certainly have been forbidden to protect
workers' right to strike. In 1920, minimum wage laws were
unconstitutional.
But as co-blogger Randy points out in a response to Sunstein, there
doesn't seem to be anyone out there, liberal, conservative, or
libertarian, who thinks that the pre-New Deal Supreme Court had things
completely right, or even almost right. Conservative originalists
object to the entire line of Lochner cases, including Meyer, Adkins,
and Gitlow (see below). Libertarians (and many conservatives) think
the Court had too narrow an interpretation of freedom of speech, and
tunnel vision on issues of race.
But perhaps Judge Doug Ginsburg, originator of the "Constitution in
Exile" phrase, is an exception, and he, and perhaps a secret group of
acolytes, want to restore constitutional law to its state in 1930?
Sunstein writes:
For Judge Ginsburg, and for some others, the court had the
Constitution right in 1930. Judge Ginsburg also believes that the
Constitution in Exile forbids Congress from "delegating" its
authority to administrative agencies, such as the Environmental
Protection Agency, by giving them broad discretion. Judge Ginsburg
believes that since 1930, the Supreme Court has "blinked away"
individual rights, above all the right to private property�and
created rights of its own choosing, like the right to choose
abortion.
But [3]here is the sum total of what Judge Ginsburg has to say about
the "Constitution in Exile":
So for 60 years the nondelegation doctrine has existed only as part
of the Constitution-in-exile, along with the doctrines of
enumerated powers, unconstitutional conditions, and substantive due
process, and their textual cousins, the Necessary and Proper,
Contracts, Takings, and Commerce Clauses. The memory of these
ancient exiles, banished for standing in opposition to unlimited
government, 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.
I find it difficult to tease out of this paragraph--much less out of
Ginsburg's subsequent repudiation of the nondelegation doctine in the
same piece--what Sunstein does.
*Sunstein uses 1920 advisedly, because by 1930--still pre-New Deal
days, let's keep in mind--the Court [4]had dealt a blow to sex
discrimination in Adkins v. Children's Hospital (later reversed by a
New Deal Court decision), and Meyer v. Nebraska in 1923 had recognized
broad liberty rights under the Due Process Clause, likely including a
version of the right to privacy, but New Deal decisions had cabined
such rights dramatically until Griswold v. Connecticut in 1965. So, if
anything, in at least some ways the pre-New Deal Court was far more
agreeable to Sunstein on "liberty" issues than was the New Deal Court.
(And the Court's broader free speech jurisprudence began with Gitlow
in 1925.)
References
1. http://volokh.com/archives/archive_2005_04_10-2005_04_16.shtml#1113706625
2. http://legalaffairs.org/webexclusive/debateclub_cie0505.msp
3. http://www.cato.org/pubs/regulation/reg18n1f.html
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=414500
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