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Constitution in Exile



Yesterday the New York Times Magazine published a cover article by Jeffrey Rosen on the supposed "Constitution in Exile" movement, a group of libertarian legal thinkers who it seems have been working termite-like in the dark to undermine the Constitutional foundations of the sorts of economic regulations that the Supreme Court has mostly upheld since the late 1930s. Early reactions -- the Volokh Conspiracy is the place to start -- are mixed as to the article itself, but often decidedly caustic as to the way the Times's editors set about framing and hyping its themes:

* "Constitution in Exile" is indeed an evocative phrase (I once quoted it myself) but there's next to no evidence that the thinkers Rosen discusses see themselves as part of a "Constitution in Exile movement" or, with one or two exceptions, use the phrase at all. (Orin Kerr, David Bernstein);

* Instead, what's being rolled together here is the work of rather disparate thinkers who over a period of 25 years or more have sought to reinvigorate or rethink a wide variety of Constitutional doctrines including the Takings Clause, Due Process, Commerce Clause, non-enumerated powers, non-delegation, the Compacts Clause, and others. The effect of pretending that this is all an organized "movement" is to conceal crucial divisions on the particulars; for example, Justice Scalia gets portrayed (very paradoxically by Times standards) as a good guy since he's been outspokenly critical of constitutional protection of economic liberty as a general matter. Yet in practice he has agreed with some of the key assertions of the supposed movement, such as that the Commerce Clause does not grant the federal government unlimited regulatory power (Kerr again, Ponnuru at NRO);

* Why the phrase "Constitution in Exile", then? Turns out it's been kept in circulation by the strenuous efforts of liberal lawprof Cass Sunstein (who, in the article's hilarious identifier, "describes himself as a moderate") and anti-property-rights activist Doug Kendall, both of whom appear to find it a usefully alarmist way of rallying opposition to ideas they dislike. (Kerr, Bernstein, Kerr again, Sullivan);

* The Times editors base their news hook, not to mention their hyperventilating tone, on the notion that adherents of the imagined movement are heavily represented among judicial nominees of the GWB administration, and are even now focusing with laserlike intensity on getting one of their own nominated to the next high court vacancy. (If you count Justice Thomas as sympathetic -- probably the only current Justice for whom such a case might be made -- these dangerous extremists are only four appointments away from controlling the Court!) Yet the record of the GWB administration offers scant reason to think it goes looking for members of this school as opposed to conventionally conservative nominees, and most of the Movement's supposed adherents are far removed from the fray of nomination battles (Bernstein, Kerr, Kerr again, Barnett);

* Despite the simplistic left-vs.-right framing, judicial theories which provide no check on government assertions of power are a menace to liberal and not just conservative values (TalkLeft, Bernstein).

* The Satan's-mug-shot photography gives away the game: the pictures of Michael Greve and Richard Epstein, unrecognizable to their friends, resemble outtakes from an early 20th Century medical school textbook on dermatological pathology. Back in the old days, it's said that Henry Luce would send out Time's photographers with a simple nonverbal instruction: thumbs up or thumbs down. More recently, David Brooks once wrote a funny piece about what the photo session is like when a liberal newspaper profiles a conservative: hmmm, why are they lighting me from underneath? (Althouse + comments, Sullivan, Palmer + comments).

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.