TCS Daily

The Myth of the "Constitution-in-Exile" Movement

By Pejman Yousefzadeh - October 13, 2005 12:00 AM

Last week, I wrote about the conspiracy-mongering regarding the existence and function of the Federalist Society that has become part of the judicial confirmation wars and has emerged as a major talking point against right-of-center judicial nominees. There is another conspiracy-mongering campaign that is designed to serve the same purpose and it has something to do with an alleged "Constitution-in-exile" movement of conservatives and libertarians determined to bring about wholesale changes in the American legal and political structure.

The alleged "Constitution-in-exile" movement was most notably discussed in this very long article by legal commentator Jeffrey Rosen. A taste of what Rosen believes the "Constitution-in-exile" movement to advocate can be found in the following passage about the Clarence Thomas Supreme Court confirmation hearings:

        Early in the hearings, Joseph Biden, the Delaware Democrat who was 
        chairman of the Senate Judiciary Committee, voiced a concern about 
        Thomas's judicial philosophy. In particular, he singled out a speech 
        that Thomas gave in 1987 in which he expressed an affinity for the ideas 
        of legal scholars like Richard A. Epstein. A law professor at the University 
        of Chicago, Epstein was notorious in legal circles for his thesis that many 
        of the laws underpinning the modern welfare state 
        are unconstitutional. Thomas tried to assure Biden that he was interested 
        in ideas like Epstein's only as a matter of ''political theory'' and that he 
        would not actually implement them as a Supreme Court justice. Biden, 
        apparently unpersuaded, picked up a copy of Epstein's 1985 book, ''Takings: 
        Private Property and the Power of Eminent Domain,'' and theatrically 
        waved it in the air. Anyone who embraced the book's extreme thesis, 
        he seemed to be suggesting, was unfit to sit on the court.

That suggestion is now being carried forth by allies of Senator Biden like University of Chicago law professor Cass Sunstein who wrote in advance of last year's Presidential election that:

        . . . In the last few years, right-wing activists have become far more 
        ambitious. There is a great deal of talk about restoration of the "Constitution 
        in Exile" -- the Constitution as it existed in 1932, before President Franklin 
        Delano Roosevelt's New Deal. Under this Constitution, the powers of the 
        national government were sharply limited. The National Labor Relations 
        Act of 1935, not to mention the Civil Rights Act of 1964, would have 
        been impermissible. Under the Constitution in Exile, rights to have recourse 
        against discrimination, and to protection of privacy, were minimal. A far 
        more significant right was freedom of contract, which threw minimum-
        wage legislation into constitutional doubt. The Supreme Court tends to 
        move slowly, and under a second Bush term, it would not adopt the 
        Constitution of 1932; but it would probably move in that direction.

Very scary and conspiratorial stuff, indeed! The only problem is that the "Constitution-in-exile" movement is a near complete myth.

The phrase "Constitution-in-exile" came from this obscure Regulation magazine article by Judge Douglas Ginsburg of the D.C. Circuit Court of Appeals and appears in the following passage:

        So for 60 years the nondelegation doctrine has existed only as part of 
        the Constitution-in-exile, along with the doctrines of enumerated powers, 
        unconstitutional conditions, and substantive due process, and their 
        textual cousins, the Necessary and Proper, Contracts, Takings, and 
        Commerce Clauses. The memory of these ancient exiles, banished for 
        standing in opposition to unlimited government, is kept alive by a few scholars 
        who labor on in the hope of a restoration, a second coming of the Constitution 
        of liberty -- even if perhaps not in their own lifetimes.

It is in response to this passage that the conspiracy-mongering regarding the "Constitution-in-exile" movement arose. Of course, it bears asking if the movement itself has received enough attention in scholarly circles to warrant so much argumentation in the present day judicial confirmation wars. Law professor Orin Kerr has some doubts on that score:

        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.

        [. . .]

        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.

It certainly does -- as Professor Kerr shows in this follow-up post. Turning over the microphone to law professor David Bernstein, we find him saying that "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." Professor Bernstein's next point is a crucial one:

        I acknowledge that some Federalist types, including me, do believe 
        that various pre-New Deal constitutional doctrines should be revived. 
        But let's be clear on the fact that the idea that there is some organized 
        "Constitution in Exile movement," that is in fact using that phrase is pure 
        fiction. Why does this matter? Because the phrase "Constitution in Exile 
        movement" implies that there is some organized group that has a specific 
        platform. In fact, what you really have is a very loose-knit group of 
        libertarian-oriented intellectuals with many disagreements among themselves.

As Professor Bernstein goes on to note, there are a number of ideological and policy divisions between supposed members of the supposed "Constitution-in-exile" movement -- a fact that reveals the exposés of such a movement to either be the products of shoddy research or to be deliberate efforts to mislead the public regarding the nature of the debate over the future of American constitutional jurisprudence.

Not only are the facts wrong regarding the existence of a "Constitution-in-exile" movement, they are wrong regarding what that supposed movement believes in. In response to Jeffrey Rosen's argument that a "Constitution-in-exile" Supreme Court would bring back pre-New Deal jurisprudence, blogger and Yale law student Will Baude points out that:

        The Court's jurisprudence from 1896-1937 is really quite remarkably 
        different from the jurisprudence that would flow from an Epstein Court, 
        in the First Amendment area, in terms of the zoning and taxing powers, 
        and much, much, more.

As Baude remarks, on this and other issues, Rosen's article "gets unfortunately smashed together many things that need to be untangled."

Later on in Rosen's article, we are introduced to University of Chicago law professor Richard Epstein, who is portrayed as a prime figure in the "Constitution-in-exile" movement and as being even more radical than the famed liberal bogeyman Justice Antonin Scalia because Epstein is willing to overturn precedent while Scalia -- even though he may disagree with the doctrinal underpinnings of certain precedential rulings -- is more respectful of precedent. Interestingly enough, Rosen does not bother to inform his readers that there is a significant effort underfoot to reconcile the Scalian view of judicial restraint and originalism with the Epsteinian view dictating a need to go back and overturn laws that might have been incorrectly decided. This effort at reconciliation is most notably evident in Randy Barnett's Restoring the Lost Constitution, which advocates originalism and simultaneously argues that an originalist reading of the Constitution would allow a "presumption of liberty" that would go a long way towards satisfying the Epsteinian viewpoint. It is strange that this issue did not appear to be worth Rosen's time to discuss; though he mentions Barnett's book in passing while discussing Barnett's role in Ashcroft v. Raich, Rosen does not discuss the way in which Barnett's book could be seen as a way to bring followers of the Epsteinian school and followers of the Scalian school together. Perhaps it was not discussed because Rosen was happy to leave his readers with the fear that somewhere out there, there exist legal theorists who are even more "extreme" than Antonin Scalia.

In the end, perhaps the best way to deal with the fear-mongering about the "Constitution-in-exile" is to treat such fear-mongering with the contempt it deserves. Which blogger and recently graduated Harvard law student Amber Taylor does:

        As someone who pretty much agrees with Richard Epstein on everything, 
        I would be a card-carrying member of this movement if it existed. But it 
        doesn't. Of course, maybe membership is secret, just like the human 
        sacrifice people attribute to the Federalist Society. If so, please send 
        me the coordinates to meet for the midnight initiation, guys!

No doubt in some eyes, Ms. Taylor's joke only serves to confirm the perniciousness of both the Federalist Society and the "Constitution-in-exile" movement.

The author is a lawyer and TCS contributor. Find more of his writing here.


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