Cognative Dissident

Tuesday, January 4

Federalism and "The Constitution in Exile"

Orin Kerr over at The Volohk Conspiracy continues a discussion about Cass Sunstein's use of the phrase "Constitution in Exile" to describe what Sunstein purports to be a conservative judicial movement to roll back the expansion of federal powers since The New Deal.

As Kerr pointed out earlier, it seems that professor Sunstein is the only person using this term. Sunstein has apparently conceded this point but argues that while he may be the one responsible for popularlizing the term "Constitution in Exile," semantics don't really matter, rather that it's the desire to undo much of the jurisprudence of the last half of the 20th century that's important:
Randy Barnett's powerful book, Restoring the Lost Constitution, is definitely in the same general vein (consider the title!); so too is some of the work of my colleague Richard Epstein, especially but not only on the commerce power. So too for much conservative writing on the nondelegation doctrine. Justice Thomas writes significant opinions that support the general goal (restoring the lost constitution, or what Judge Ginsburg calls the Constitution in Exile), as of course you know; and Scalia is often with him.
The idea of the lost Constitution, or the Constitution in Exile, or the original constitution, is very prominent in the conservative community. In fact the idea of originalism goes hand-in-hand, for many people, with the idea of a Constitution in Exile, whether or not that phrase is used. I think the Constitution in Exile phrase is especially evocative, and I admire Judge Ginsburg a great deal (despite major disagreements on this point). But the goal is what's important, not the specific term, and it seems to me that we've all witnessed the rise of that goal, especially in the last decade or so, with the increasing assertion of a certain form of originalism.


Kerr indicates that while it may be true that conservatives are, in fact, conservative on the role of the Federal government, this doesn't constitute a movement, any more than some liberals who believe that "the Constitution must be reconceived to serve a basic purpose: the protection of human dignity," are a comparable liberal movement.

Whether or not a movement to restore "The Constitution In Exile" really exists seems a bit beside the point to me. The fact is that society has largely come to accept and rely on the provisions of The New Deal and the expanded federal powers that came with it. Despite all the conservative rage about "Judicial Activism," courts, from the Supremes on down, simply don't have the power to make such an enormous change sitck without substantial social and political support.

One might argue, based on Bush's relection and the composition of Congress, that sufficient political support is there for such an agenda (though I suspect that congressional support for such a reactionary agenda would be very limited), there's no evidence that even a substantial minority of the electorate want The New Deal undone.

Unless they're interested in seeing an amendment to the Constitution that explicitly grants broad regulatory powers to Congress, I think that those who favor a limited roll for the federal government should be very careful about using Constitutional grounds to undo social saftey-net programs which are broadly popular.

Given Sunstein's writings about FDR's "Second Bill of Rights", maybe that's something he wouldn't mind so much.

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