Posted by David Bernstein:
"Constitution in Exile":
http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224879887
I really like Jeffrey Rosen of G.W. Law School and the New Republic,
as a writer, a scholar, and a person (we were classmates at Yale Law
School). But it really irritates me that [1]he continues to write of
"activist conservatives, who yearn for the resurrection of what they
call the Constitution in Exile," even though Randy Barnett, Orin Kerr,
I, and others have pointed out that one cannot find any indvidual
"activist conservatives" who actually use, or have used, that phrase,
beyond one use in a related context by Judge Douglas Ginsburg in 1995.
Randy [2]summed it up quite well:
There is no "Constitution in Exile" movement, either literally or
figuratively. As for literally, I and others had not even heard the
expression, plucked from an obscure book review by Judge Douglas
Ginsburg, until well after folks like you and Jeff Rosen had
started using it to describe their intellectual opponents. And as
author of the 2004 book, Restoring the Lost Constitution: The
Presumption of Liberty, I would seem to be at the heart of whatever
movement supposedly exists.
For obscure reasons .. the phrase "Constitution in Exile"
viscerally appeals to critics of scholars and judges who, like me,
favor interpreting the Constitution as amended according to its
original meaning. Maybe it makes these "originalists" sound kooky
or marginal or radical�like Russian nobility with their shadow
governments futilely planning their return to power from the
irrelevant comfort of London tea rooms. Maybe this rhetorical move
has something to do with undermining future nominees to the Supreme
Court who may be originalists.
Similarly, I wrote:
"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
write 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.
The one exception since these writings appeared is that after Rosen,
Sunstein, et al. popularized the phrase, Judge Andrew Napolitano
capitalized on the publicized by writing a book with that title. I
think it's fair to say, however, that beyond that book, the phrase has
received no traction among the elite conservative legal thinkers
referenced by Rosen, even AFTER he and others popularized it. So, if
Jeff, Cass Sunstein, and others want to accuse "activist
conservatives" of wishing to revive what they think of as the
"Constitution in Exile," they should feel free. But to claim that
"activist conservatives" go around talking and writing about it is
just plain false.
References
1.
http://www.tnr.com/politics/story.html?id=87ca9449-7b32-48fa-bccb-7615457812be
2. http://legalaffairs.org/webexclusive/debateclub_cie0505.msp
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