Posted by David Bernstein:
Where Did the Idea of a "Constitution in Exile" Come From?:
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1235077540
As long-time readers of this blog know, Randy, Orin, and I have spent
many a post ([1]e.g.
) debunking the notion that there is a right-wing self-styled
"Constitution in Exile" movement plotting to return the Supreme Court
to its pre-New Deal constitutional jurisprudence.
Last time I blogged about this, a commenter asked a pertinent
question: given that the only apparent source for this "movement" was
an obscure, offhand reference by Judge Douglas Ginsburg in a book
review in the low-circulation journal Regulation, how did liberal
critics become convinced that such a movement existed?
I think I've stumbled upon the answer--Linda Greenhouse. Greenhouse
wrote the following in the New York Times on May 28, 1995:
Recent events at the Court have moved that struggle to a new plane.
Two 5-to-4 decisions in the last month suggest that a
long-discarded set of constitutional principles -- a
"Constitution-in-exile," to use a phrase coined by one of its
advocates, Judge Douglas H. Ginsburg of the Federal appeals court
here -- is about to assume its place at the table as a
reincarnation of the Constitution that was.
Greenhouse made two errors here. First, there is no indication that
there was a group of "Constitution in Exile" advocates out there,
among who Judge Ginsburg was just one member. Second, as Orin [2]has
pointed out, Ginsburg actual criticized constitution in exilish
thinking:
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...
So, in the legal equivalent of the butterfly effect, sloppy (or
perhaps tendentious and dishonest) journalism by a New York Times
reporter leads to [3]ridiculous claims over a decade later, such as
that a McCain victory in 2008 would have led to a victory for
"activist conservatives, who yearn for the resurrection of what they
call the Constitution in Exile."
References
Visible links
1. http://volokh.com/posts/1224879887.shtml
2. http://volokh.com/posts/1113766638.shtml
3.
http://www.tnr.com/politics/story.html?id=87ca9449-7b32-48fa-bccb-7615457812be
Hidden links:
4. file://localhost/var/www/powerblogs/volokh/posts/1235077540.html
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