Posted by David Bernstein:
Barnett and Sunstein on the "Constitution in Exile" (Among Other Things)
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136844943
Kaimi Wenger [1]has blogged last Friday's AALS session entitled "The
Constitution in Exile", featuring Cass Sunstein and our own Randy
Barnett. I attended the session, and have a few additional thoughts:
(1) When pressed on whether there is a "Constitution in Exile"
movement that dominate Republican legal circles, Sunstein consistently
relied on an argument from authority: Doug Ginsburg, who should know,
says there is. As Wenger notes, when pressed further, Sunstein argued
first that "there is a movement, but Randy isn�t part of it;" Who
then comprises the movement? He mentioned unnamed persons in the
Meese justice department; unnamed Republicans; "fundamentalists."
He asserted that this group comprises a "monolithic political
movement."
However, if we go back to what Ginsburg actually wrote in his
now-famous book review, he is clearly referring to a small, lonely
group of academics, not the mainstream of the Republican conservatism:
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.
What Ginsburg is actually describing as of 1996, it seems to be, is
University of Chicago Professor Richard Epstein, and perhaps a couple
of other people). Who else among prominent "conservatives" (other than
perhaps USD's Siegan) wanted to revive Lochner v. New York
(substantive due process). It's rather tendentious to ascribe views
such as Epstein's to the Meese Justice Department, which considered,
and explicitly rejected, nominating Epstein to the Seventh Circuit
because he was too "activist." While I know Randy rejects the idea
that he believes in a "constitution-in-exile," as of 2005, other than
Epstein, Randy would clearly be the most prominent proponent of
reviving the doctrines mentioned by Ginsburg (though he'd substitute
privileges or immunities for substantive due process). So, if there
was a Ginsburgian "movement" (and there isn't, and Ginsburg certainly
didn't call it a movement), Randy would be a charter member. If Randy
isn't part of such a movement, then there isn't one.
(2) More generally, as I pointed out in my question at the session,
not only is it impossible to find anyone who wants to restore
constitutional law as it existed in 1937, mainstream Republican
conservatives explicitly reject elements of that jurisprudence,
including substantive due process (think not only Lochner, but Meyer
v. Nebraska and Pierce v. Society of Sisters), and limits on executive
power (Humphrey's Executor). And the idea that President Bush--who has
presided over the greatest increase in federal power since Lyndon
Johnson--and his core supporters seek to overturn the New Deal,
judicially or otherwise, flies in the face of the last five years of
Republican rule. Can you even imagine W. saying "government isn't the
solution, government is the problem," much less acting on it?
(3) Oddly,the "Constitution in Exile" meme has caught on, but the
truth is far more damaging (and discouraging): the conservative
majority of the Supreme Court has a general conservative trajectory,
but within that trajectory is rather unprincipled and often seeks to
accomplish conservative political goals even when they conflict with
conservative judicial principles (e.g., the conservatives' views on
state sovereign immunity and, more controversially, affirmative
action, are both "activist" and nonoriginalist). Only Justice Thomas
makes even an attempt to adhere to a consistent conservative,
originalist judicial philosophy, and Thomas and his radical views of
constitutional interpretation only got past the Bush I White House
because they needed someone to replace Thurgood Marshall.
Apparently, however, the same dynamic is going on with judicial
politics as with economic policy: the Democrats, instead of
criticizing the Republicans for their betrayal of their purported
principle of limited government, instead attack them for allegedly
engaging, or scheming to engage in, a brutal war against federal
power. Of course, it has been brutal, in it's own way, but only to
supporters of limited government: after a decade and half of
Republican control of the Court, the federal government can't put you
in jail for possessing a gun in front of a local public
school--unless, of course, Congress specifically makes a finding that
such possession has a substantial effect on interstate commerce.
*****"Constitution of Liberty"--Now there's a name for a movement. Why
do you think Sunstein et al. claim based on Ginsburg that there is a
"Constitution in Exile" movement, not a "Constitution of Liberty"
movement? Could it be that (1) the former sounds ominous, the latter
sounds good; and (2) the latter makes it clear that Ginsburg was
referring to a small group of libertarian scholars, not the broader
conservative movement?
References
1. http://www.concurringopinions.com/archives/2006/01/sunstein_and_ba_1.html
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