April 17, 2005

Worrying about "The Constitution in Exile."

Do we have to read Jeffrey Rosen's long article in the NYT Magazine (poorly titled "The Unregulated Offensive")? It's an examination of what is characterized as a movement -- called "The Constitution in Exile" -- to bring back the Constitution as it was understood before the Court changed many interpretations beginning in 1937. The article, which is full of the usual warnings about Bush's judicial nominees, focuses on a few key proponents, for example:
Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. ''I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice,'' he says. ''We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there.''

There's much more in the article, including a discussion of the theories of lawprof Richard Epstein, and a description of a clash between Epstein and Justice Scalia. I could excerpt more, but I recommend reading the article if you're not familiar with recent Supreme Court case law. If you are familiar with the cases, you might want to skim and then read the last page, which is oddly inconclusive.

UPDATE: This post by David Bernstein at Volokh Conspiracy is very helpful. He debunks the idea of a "Constitution in Exile movement" (there's really only "a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves"), [MATERIAL DELETED because Bernstein deleted it as "unfair"], and observes that Bush is unlikely to try to appoint libertarians to the Supreme Court. About the phrase "Constitution in Exile," he writes:
[T]he phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to mutter about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."
You can read that symposium issue of Duke Law Journal here. I was one of the participants.


Dave said...

I read the article last night (being in NYC has its advantages I suppose) and immediately wondered what all the legal bloggers would have to say.

Though I claim no expertise in the area, I immediately suspected that the law profs, such as you, who are not really on the hardcore left, would look askance at some of his assertions.

Allah said...

The best part was the photos. High contrast B&W shots of Mellor stroking his chin villainously and Greve and Epstein looking cadaverous. And how about that cover image of the Constitution encased in a block of ice? Chills, I tell you!

Then again, I side with Scalia over Epstein so maybe I'm biased.

Chan S. said...

I couldn't even recognize Epstein from the photo--no glasses and no wide-toothed smile. Is that really him? The Scalia-Epstein kerfuffle sounds interesting, though, if true.