Is "The Constitution in Exile" A Myth?:
In a book review in the latest issue of The New Republic, Cass Sunstein renews his claims that "[t]here is increasing talk [among conservatives] of what is being called the Constitution in Exile — the Constitution of 1932, Herbert Hoover's Constitution before Roosevelt's New Deal." Sunstein has suggested this a number of times before (see, e.g., here and here), and the claim has been repeated recently by The New York Times and by my colleague Jeffrey Rosen. The suggestion is that influential conservative lawyers express their goal for the courts as being the restoration of "the Constitution in Exile."
The odd thing is, I can't recall ever hearing a conservative use the phrase "the Constitution in Exile." I asked a couple of prominent conservatives if they had ever heard the phrase, and they had the same reaction: they had never heard the phrase used by anyone except Cass Sunstein and those discussing Sunstein's claims.
As best I can tell, the phrase "Constitution in Exile" originally appeared in a book review by D.C. Circuit Judge Douglas H. Ginsburg in 1995 in the course of discussing the nondelegation doctrine in the journal Regulation. As you can see from the article itself, the use of the phrase is not exactly prominent: it appears once, near the end of the introduction. In any event, the use of the phrase in Ginsburg's review inspired lots of critical commentary from legal academics, including its own symposium in the Duke Law Journal (you can read the Foreward to the symposium issue here). But my initial google and Westlaw research failed to uncover direct evidence — beyond the initial book review, which I just read today — that conservatives or libertarians have used this phrase to describe their goals.
Why does it matter, you wonder? After all, some on the right do want the Supreme Court to bolster some constitutional doctrines that the Court deeemphasized in the post-New Deal era. Critics could decide that they think this agenda should be described as amounting to a wish to restore the Constitution in Exile. But if I understand it correctly, Sunstein's claim is different: the claim is that conservatives themselves use the phrase — "right-wing activists . . . talk about restoration of the 'Constitution in Exile'." The difference matters, I think, because describing something as being "in exile" suggests recognition of a revolutionary agenda. If a government is overthrown and the old leaders flee but remain intact, referring to the old leaders as "the government in exile" suggests that the old government is just biding its time before it can launch a counterrevolution. The rhetorical power of Sunstein's claim lies in its suggestion that conservatives see their own goals as truly revolutionary. If the phrase is not actually used by conservatives, but rather is a characterization by their critics, I think that makes a notable difference.
I have enabled comments. I am particularly interested in uses of the phrase "Constitution in Exile" by conservatives that I may have missed. (This isn't my specialty area, so it's quite possible that it is in fact used and I just missed it.) Also, if the comment function isn't working, try leaving a comment here.
UPDATE: Steve Bainbridge offers commentary here.
The odd thing is, I can't recall ever hearing a conservative use the phrase "the Constitution in Exile." I asked a couple of prominent conservatives if they had ever heard the phrase, and they had the same reaction: they had never heard the phrase used by anyone except Cass Sunstein and those discussing Sunstein's claims.
As best I can tell, the phrase "Constitution in Exile" originally appeared in a book review by D.C. Circuit Judge Douglas H. Ginsburg in 1995 in the course of discussing the nondelegation doctrine in the journal Regulation. As you can see from the article itself, the use of the phrase is not exactly prominent: it appears once, near the end of the introduction. In any event, the use of the phrase in Ginsburg's review inspired lots of critical commentary from legal academics, including its own symposium in the Duke Law Journal (you can read the Foreward to the symposium issue here). But my initial google and Westlaw research failed to uncover direct evidence — beyond the initial book review, which I just read today — that conservatives or libertarians have used this phrase to describe their goals.
Why does it matter, you wonder? After all, some on the right do want the Supreme Court to bolster some constitutional doctrines that the Court deeemphasized in the post-New Deal era. Critics could decide that they think this agenda should be described as amounting to a wish to restore the Constitution in Exile. But if I understand it correctly, Sunstein's claim is different: the claim is that conservatives themselves use the phrase — "right-wing activists . . . talk about restoration of the 'Constitution in Exile'." The difference matters, I think, because describing something as being "in exile" suggests recognition of a revolutionary agenda. If a government is overthrown and the old leaders flee but remain intact, referring to the old leaders as "the government in exile" suggests that the old government is just biding its time before it can launch a counterrevolution. The rhetorical power of Sunstein's claim lies in its suggestion that conservatives see their own goals as truly revolutionary. If the phrase is not actually used by conservatives, but rather is a characterization by their critics, I think that makes a notable difference.
I have enabled comments. I am particularly interested in uses of the phrase "Constitution in Exile" by conservatives that I may have missed. (This isn't my specialty area, so it's quite possible that it is in fact used and I just missed it.) Also, if the comment function isn't working, try leaving a comment here.
UPDATE: Steve Bainbridge offers commentary here.
All Related Posts (on one page) | Some Related Posts:
To be clear, I have no problem if critics want to argue that some conservatives want constitutional changes so profound that it would amount to the return of a "constitution in exile." Perhaps a small number do. But saying that conservatives themselves have taken to using the phrase seems quite different. (If you don't see the difference, imagine a Republican falsely claiming that Democrats describe their own policies and agenda in the way that Rush Limbaugh describes them. Makes a big difference, I think.)
I think it's meant to be a substitute for an argument: tie conservatives to the political agenda of 1932, and urge the rejection of that agenda, without regard for whether its an accurate description of what conservatives want now (in politics or law, or, as Sunstein would have it, in law-as-politics).
Matters: How Property Rights Are Under Assault and
Why You Should Care") The author of that review is Walter Olson of the Manhattan Institute and cites Ginsburg as the source of that term. In short, yes, right wing "intellectuals" (if the two can be used in the same sentence) have used the term.
It appears you now have a moniker to hate as much as the lefties hate the term "politcally correct," which is today used exclusively as a derogatory term by right wing pundits.
That's out of 15 pages of Google results. All the rest of the results seem to be from liveral sources. Google News only gives me one result - from a fishing magazine.
I guess what I'm trying to say is that it sounds a bit unusual, but not perjorative.
We would like to restore the privileges and imunities clause,
the second amendment, the first amendment as applied to political speech, the takings clause, the jury, the excessive fines clause, and so forth. Constitution in exile is descriptive. "The constitution isn't perfect, but it's better than what we've got now." My own focus has been on the "free and equal elections" clause of state constitutions, which also tend to be constitutions in exile.
So your real problem is that Sunstein has managed to label your beliefs with a label you don't like and gotten others to start using it as well. So come up with your own label. In my experience, when people start obsessing about labels, it's usually because they don't want people looking beyond the label. In this case, I don't think that those who advocate for the principles that Sunstein refers to as the Constitution in Exile want it to get very close scrutiny because they aren't positions, in my opinion, that most Americans would support.
To be clear, I don't have any problem with the phrase itself. Anyone is free to characterize the arguments of their opponents, and if Sunstein simply has come upon a powerful phrase that he can use against a set of ideas he disagrees with, then good for him.
My concern is that, at least as I read Sunstein's various statements (and the statements of other critics who have repeated it), the claim appears to be that conservatives themselves are using this phrase. If I'm wrong, and everybody realizes that this phrase is primarily Sunstein's own, then the mistake is entirely mine and you should feel free to disregard my post. At the same time, my sense is that most of the uses of the phrase "constitution in exile" suggest (or directly claim) that conservatives are themselves using the phrase.
For example, in a Dec 21, 2003 editorial in the Washington Post, Sunstein writes: "In more recent years, many conservatives have argued not for judicial restraint but for judicial activism . . . Increasingly the target has been national power -- and their villain has been Franklin Roosevelt, not Earl Warren. There has been open talk of restoring the 'Constitution in Exile' -- the Constitution as it was understood in 1930, before the election of Roosevelt and the rise of the modern regulatory state." The phrase "there has been open talk" is a bit ambiguous, I suppose, but I think in context it implies "talk among conservatives," not among their critics. The NY Times op-ed I linked to in my post was more direct: "States' rights conservatives have always been nostalgic for the pre-1937 doctrines, which they have lately taken to calling the Constitution-in-Exile."
1) What would conservatives call their movement to return to a pre-New Deal constitutional viewpoint? I think Sunstein's phrase has caught on, in part, becuase no one else has offered up an alternative.
2) Is Sunstein's or the WaPo's definition of what the CoE constitutes accurately describe the efforts or beliefs of those who they attribute it to? If not, in what ways are they wrong or would one define oneself?
I'm more interested in the debate over the legal principles behind the catch phrases, not the phrases themselves.
In the Slaughterhouse Cases (1873), the Supreme Court read the "privileges and immunities" clause to have pretty much no practical effect. The p &i clause was not part of 1873-1937 jurisprudence (or of jurisprudence since then either).
It wasn't sent into exile by New Deal justices. It was pushed aside much earlier.
Again, you are attacking the messenger for simplying stating what is true. Plessy v. Ferguson was the reigning constitutional viewpoint in the 1930s and before that, the Court had gutted the Civil Rights Acts of the 1870s. So what's the proper framework for deciding Congress's power to enact Civil Rights legislation? Start discussing the issue and stop trying to stir the pot with claims that supporters are being tar-brushed with claims of being Klan members.
Personally, I think there is an argument that Congress has the power to enact the far-reaching legislation that was embodied in the Civil Rights Acts of the 1870s. They were more powerful and less constitutionally challengeable than the Civil Rights legislation that has been enacted since the 1960s. The also had the benefit of being drafted by the same people who had drafted and adopted the 13 - 15 Amendments.
Agreed. This debate appears to be a glaring red herring, something that we argue about while avoiding the more important issues at stake.
For those interested in the course of American constitutional development, it certainly *would* be revolutionary if the scope of federal power was interpreted in the way it was under Plessy v. Ferguson. Conversely, the changes brought about in American constitutional doctrine following FDR's Court Packing Plan and the infamous "Switch in Time that saved Nine" were revolutionary for the period.
In legal circles, "revolutionary" simply means broad and far-reaching changes in legal doctrine, it does not should not be confused with the word's use in political circles, which invokes images of guns, tanks, and radical shifts in governments; I do not think Sunstein is attempting to make such a comparison at all.
The 20th century trend was toward unlimited governments, with the courts selectively imposing a few limits here and there. For the constitution to return from exile, each branch would need to take seriously its limited powers, and the people would need to learn to value and defend their rights. No one court can do the whole job. These 9 are doing pretty well, standing on the shoulders of giants, but could do much better.
Regarding Stuart’s post on racism, the Center for American Progress (run by John Podesta) has denounced Scalia as “Opposing efforts to desegregate schools.” This harkens back to efforts to paint Bork as favoring segregated lunch counters. Quick, someone call Justice Ginsburg before she spends another New Years Eve with a segregationist.
But liberals may want to be careful with it as, unlike "political correctness", it seems to me to have a certain ring that could backfire, much as when the British derided colonists with the term "Yankee Doodle."
BUT....the debate that Sunstein seems itching to initiate is whether there is a movement to rollback the constitutional viewpoint that has evolved since the New Deal. I don't think there is any debate that there is, whatever label you attach to it. To me, it's pretty disingenuious of conservatives to claim that they want to see a return to a pre-New Deal viewpoint of the Constitution but then try to run from the results that Sunstein sees as a natural result of such a return.
As Sunstein noted several times, a CoE vision of the legal world would bring into question many of the labor laws, civil rights laws and protections of privacy that the Court has adopted or upheld since the New Deal. Is Sunstein just wrong or does the truth make you all uncomfortable?
My take on the situation is that most conservatives who embrace the concept represented by the CoE are perfectly comfortable with the results that would result from a CoE vision of the law. But they also know that they are political losers that will never garner the support of a majority of Americans. Who wants to publicly defend a legal framework that would allow for the rollback of Brown v. Board of Education or the end of child labor laws or allow states to regulate matters of contraception and interracial marriage - all legal viewpoints that have their grounding in the legal positions of the post-New Deal courts and all decisions that seem in opposition to the views of the crowd defined by the CoE viewpoint.
If you care to explain how your vision of the Constitution would deal with just those issues (school desegregation, child labor laws, contraception and interracial marriage), it might give us a better idea of what you really believe.
I think the point I am trying to make, is that those whom seek some changes in American Constitutionism, should chose their battles, rather than advocate broad, sweeping change that could reasonably be termed a movement to restore a "Constitution in Exile."
However, if that is what these reformers want, then I think, as TruthinAd has pointed out, they should be up front about it, and argue the points directly.
My own view is that the Court needs to be very careful about trimming the scope of Commerce Clause jurisprudence precisely because our society has a huge amount resting on the existing legal construct, even though serious arguments can be made that the current jurisprudence is inconsistent with the original understanding. Stare decisis should apply with great force in the face of that huge vested interest. What I find appalling about Nan Aron is her assertion that “dozens and dozens” of Bush nominees have signed on to the full-monty Exile agenda. What balderdash. I think a similar notion was at the nub of Stuart’s complaint about Sunstein. I’ll leave it to Judge Ginsburg, Randy Barnett, and others to explain whether and how to rescue those laws on their narrower reading of the Clause. I agree with you that those questions are important. But those important questions don’t justify Aron’s ravings.
BTW, Podesta’s smearing of Scalia has nothing to do with the Commerce Clause, but instead turns on presumptions that should apply in desegregation cases. However one feels about those presumptions, his labeling of Scalia’s views as “opposition to desegregation” (in a bold all-caps headline) is truly vile.
Finally, I find your reference to Brown v. Bd puzzling, and disturbingly so because it’s becoming more common for the left to suggest that Brown is somehow at risk. Hillary said this twice in her inaugural ACS remarks, i.e. that the Bush Administration is bent on turning the clock back to the time before Brown. I’m sure it’s a great applause line, and it must make for good fundraising, but it contains not an ounce of truth. Not even the Exile people like Ginsburg make arguments that implicate the Equal Protection foundations of Brown. Or am I missing something?
You've put your finger on it. The most that someone could honestly argue is that various New Deal programs might be in danger if a few conservative/libertarian lawyer get their wish (i.e., to interpret the Constitution's Commerce Clause as it was written). But no one is agitating to overturn Brown v. Board of Education or Loving v. Virginia (the interracial marriage case), as "TruthinAdvertising" spuriously suggests above. No one of any importance thinks that the Equal Protection Clause would allow such results. Indeed, the Federalist Society's national convention last month was centered on the theme "Celebrating Brown v. Board of Education's Promise of Equality Before the Law." To suggest that conservative/libertarian lawyers are plotting to overturn Brown is just silly scaremongering.
If one looks at similar constitutional states, like Canada, where jurisdiction is divided among a federal and more local (provincial) levels, you find a similar division of powers as provided in the Commerce Clause. That is, the federal government has jurisdiction to regulate trade between provinces, even if the industry or business itself is local.
Again, is this what conservatives want? It seems to me that what conservatives or libertarians truly would want is a reading of the Commerce Clause not "as it is written" but rather one that effectively reads out inter-state regulation.
I'm glad to see that you're embracing such a board view of the Equal Protection Clause. However, I think it's disingenious to imply that supporters of the CoE don't have a differing view of the Equal Protection Clause. There is definitely a desire to rollback the boundaries of the Clause. Voices like Robert Bork are not the mouthpieces of some fringe entity. Bork clearly thinks that the EPC has been broadened far beyond its original intent. And as for the implication that those who support a constitutional framework based on original intent can square Brown with their beliefs - well, it's again a case of saying what you want people to hear, not what you truly believe. Some conservative legal scholars have actually had the guts to say something to the effect of "The interpretation of the EPC in Brown can't be squared with the original intent" [Comments re: Bork]. But I think most advocates of original intent won't say that publicly, not because they think there is a historical basis for Brown's interpretation of the EPC but because they are afraid to say anything that might be used to smear them with the brush of racism. [For those hiding behind the Court's ruling in Brown, how does your belief in original intent handle Bolling v. Sharpe, which fell outside the bounds of the EPC?]
I'm also surprised that the defenders of the CoE focus only on how an interpretation of the Commerce Clause might affect laws regarding businesses. As critics of the CoE framework have noted, the current definitions of the Commerce Clause provide the legal justification for a whole range of civil rights legislation passed by Congress since the 1960s. A redefinition of the Commerce Claus would leave those laws open to legal challenges.
So far, you aren't debating the merits of whether liberals should pretend that conservatives themselves are using the term "Constitution in Exile." Indeed, your first post disingenuously claimed that "Sunstein has managed to label your beliefs with a label you don't like and gotten others to start using it as well." But the point is not that Sunstein himself uses the label; it's that he (and Jeffrey Rosen, as I point out) falsely ascribe the label to conservatives themselves.
I more generally stated that supporters of the CoE want to return to a legal framework whose principles could bring into question the legal underpinnings of those decisions.
So: You aren't saying that conservatives want to go back to segregation; you're just saying that conservatives want to "return to a legal framework" in which segregation was fine. That's a distinction without much of a difference.
[For those hiding behind the Court's ruling in Brown, how does your belief in original intent handle Bolling v. Sharpe
How does anyone's constitutional theory handle Bolling? Not very well at all. The only basis for the decision was, "Gee, this seems like a good thing to do."
On contraceptives and child labor: If the Supreme Court's decisions on those issues disappeared, it would have zero effect on the real world today. No one is going to ban contraceptives or send children to work in coal mines in 2004, no matter what the Supreme Court says.
I'm also surprised that the defenders of the CoE focus only on how an interpretation of the Commerce Clause might affect laws regarding businesses. As critics of the CoE framework have noted, the current definitions of the Commerce Clause provide the legal justification for a whole range of civil rights legislation passed by Congress since the 1960s.
If the Court returned to the original text of Section 5 of the 14th Amendment, there would be no need for a Commerce Clause justification for those laws; instead, such laws would be an instance of Congress "enforcing" the Equal Protection Clause. (See McConnell's commentary on Boerne v. Flores to learn about what some judicial conservatives think about this issue.)
Many feel that the legislation and adjudication that has arisen from that broad application is still very important, and that undercutting its constitutional basis would be Bad Thing. The statement, "No one is going to ban contraceptives or send children to work in coal mines in 2004, no matter what the Supreme Court says" reveals wide-eyed naivete and ahistorical provincialism. Child labor and slavery are widely practiced today. The idea that human nature has somehow evolved in America to the point that such practices could never return displays a teleological simplicity worthy of the more ardent Marxists.
1) "You aren't saying that conservatives want to go back to segregation; you're just saying that conservatives want to "return to a legal framework" in which segregation was fine. That's a distinction without much of a difference."
If that's what you think, try this one on for size - Justice Scalia supports a legal interpretation of the 1st Amendment that permits flag-burning as protected speech. So by your logic, should I assume that you consider Justice Scalia a supporter of flag burning?
2) "On contraceptives and child labor: If the Supreme Court's decisions on those issues disappeared, it would have zero effect on the real world today. No one is going to ban contraceptives or send children to work in coal mines in 2004, no matter what the Supreme Court says."
Who was talking about sending children to the coal mines? Not I. But you must not be from an area that deals with migrant laborers or agricultural issues or you would know that there are really fights over when and how much children can work in conditions unfit for adults much less children. As for bans on contraceptives, I wouldn't be at all surprised if there are jurisdictions that would do just that if they had the chance.
In any case, you once again seem unable to admit where your legal viewpoint could lead and instead want to attack strawmen of your own creation.
Yes, you are about 90% incorrect. I've given absolutely no indication that I "favor a rollback" of the Equal Protection Clause. Indeed, I don't favor any such rollback. (Why you think that is "clear" is beyond me. I'm trying to be civil here, but it is frustrating when people accuse me of "clearly" holding beliefs that I clearly don't hold.) I do think the Commerce Clause has obviously been interpreted too broadly, and that this situation isn't likely to change (the Supreme Court is likely to uphold the federal government's right to regulate intrastate and non-commercial marijuana consumption). But the idea of overturning Social Security or the EPA is ludicrous. (Note for future reference: If I ridicule claims that contraception is about to be outlawed, etc., that may only mean that I think people should conduct an honest argument without hysterics. It doesn't mean that I favor banning contraception.)
TIA: OK, logically you could say that there's a difference between wanting to "return to a legal framework" in which segregation "was fine," versus actually voting to establish segregation. But even the former insinuation is still highly inflammatory, not to mention false.
>application of the commerce and equal protection clauses that
>have arisen since the new deal. Am I incorrect?
<i>Yes, you are about 90% incorrect. I've given absolutely no indication that I "favor a rollback" of the Equal Protection Clause.</i>
Okay, isn't that more like 50% incorrect? < g >