Is There A "Constitution in Exile" Movement?

I enjoyed Jeffrey Rosen's piece on the scholars and judges who fall under the rubric of the "Constitution in Exile," a topic I've mentioned a few times here. (Always, I hope, with the caveat that I am no constitutional scholar.) I've also read with interest the responses on the Volokh Conspiracy, by David Bernstein and Orin Kerr, arguing quite convincingly that there is no such thing as a self-conscious "Constitution in Exile" movement.

Bernstein and Kerr seem to be right, and others confirm, that the phrase "Constitution in Exile" appeared in passing in a dull review of a dull book (I've actually read the book, for reasons I've forgotten) ten years ago, and has been claimed more recently by others to define a very loose group of academics and judges who share a broadly libertarian approach. Probably even at the Federalist Society, they're not raising their glasses of Cutty Sark to hail the return of the Constitution in Exile, like New York's White Russians longing for the lost Dutchess Anastasia.

I have mixed feelings about this. On the one hand, I value the truth, and overstating the degree of unity and coherence to a movement doesn't serve the truth. And I'm always worried about liberals' tendency to overstate the degree of coordination and purpose on the right, which is why I broadly agreed with David Brooks last week. In fact, I should have an article coming out soon that takes apart one small aspect of Rosen's story that has become a big part of the myth of the right. These stories are misleading for many reasons, one of which is that they feed the liberal illusion that if we just build a structure that is as well coordinated, the tides of history will shift back in our direction.

On the other hand, sometimes the way to master history is to understand trends and give them a label that the participants would not give it themselves. So what if no one considers themselves part of a "Constitution in Exile" movement? There is clearly a group of scholars and judges who hold the view that judges should give far greater deference to what they view as core economic liberties in reviewing legislative decisions. While there are variations within this view, it broadly unifies a group whose viewpoint differs on the one hand from Scalia's federalism and originalism, and on the other hand from the tradition that largely defers to Congress on matters of economic regulation.

The efforts at Volokh and elsewhere to prove the non-existence of a CIE movement do not challenge this basic point. They pick holes in Rosen's very brief description of the Lochner decision (technically, apparently it is not accurate to describe Herbert Spencer as a Social Darwinist, Holmes along with other evil "statists" were appointed by Republicans so it is incorrect to describe the CIE'ers as longing for a golden age of Republican rule) but do not challenge the basic point that the thinkers and judges in Rosen's article probably think Lochner was correctly decided. And if that's the case, then Rosen's article is basically correct, even if it implies a greater sense of coherence and movement than exists.

As Rosen makes clear from the start, The Constitution in Exile theme is going to be a powerful weapon against judicial nominees like Janice Rogers Brown who contend that 1937, the year the Court switched on some issues, was ''the triumph of our socialist revolution." When Clarence Thomas was up for confirmation in 1991, these were marginal and idiosyncratic ideas. If Thomas read Richard Epstein's books out of interest, so what? (One should read them, by the way.) Now, however, it's part of something bigger, a real push to turn back decades of jurisprudence.

There's a lot of political power in defining trends and defining movements. I'm sure the Constitution in Exile label fits awkwardly and it's not something people want to be stuck with, because it doesn't sound like a very good thing. But there is a group that has these views, and this is a good way to make sense of it all.