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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.

Posted by Mark Schmitt on April 18, 2005 | Permalink


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Your post is spot on. The Volokh criticism of Rosen's article consisted entirely of a transparent rhetorical device -- attempting to discredit the core thesis of an argument by attacking a fact that is mentioned in, by is by no means crucial to, that argument. And anyway, Volokh et al are wrong: the "Constitution in Exile" phrase has been used a number of times. At least, I've read it a number of times. Whether Richard Epstein uses the phrase or not is irrelevant. Similarly, whether the Lochner era is properly called "Republican" or not is irrelevant.

Rosen's article underscored, for me at least, the moral vacuity of the Constitution in Exile's backers. I mean, what notion of the good life or good society would prompt one to gut effective environmental regulations and the minimum wage? And if, as some libertarian's claim, we could get to the same social outcomes without all the troublesome regulation if we just allowed all the affected parties to bargain freely, then what's the point? I end up with clean air and a living wage -- but only because I spent a bunch of time negotiating with all and sundry to achieve that result. If nothing else, what a pain in the ass!

But oh, the sweet song of liberty that will ring across the land! At last, I'll be free of the tyranny of the FDA, able to bargain with Merck as to the safety standards it will employ before selling me my prescription. And no more Social Security! What a relief that will be to me and my otherwise destitute grandmother. And don't get me started about the Federal Reserve. Maybe finally I'll be able to get the fluoride out of my drinking water.

These people, with their state-of-nature-social- contract-primacy-of-economic-rights libertarian fantasies, scare the hell out of me. They are moral idiots, whose seemingly unstoppable rise to power will put us all at the mercy of Exxon, Walmart and the rest.

Posted by: Charlie Robb | Apr 18, 2005 9:07:05 PM

I think you're right to focus on Lochner. Regardless of the accuracy of the CIE label, and I agree that it was a sloppy way to frame the article, the scholar/activists mentioned by Rosen simply have no business complaining about the thesis of the article if they think that Lochner was correctly decided. Randy Barnett (another Volokh Conspirator) clearly falls in to this category. He of course would argue that his reasons for beleiving that Lochner has been unjustly maligned for all these years is extraordinarily nuanced and complex. But when push comes to shove he clearly believes that the economic liberties espoused in Lochner have been given short shift and should be embraced once again by future justices. And he's not shy about it. In a recent essay, Professor Barnett tells a cute story about the difference between getting an "A" and a "B" in a hypothetical constitutional law class, all in service of the proposition that Justice Kennedy's decision invalidating Texas' anti-sodomy laws in Lawrence v. Kansas could validly be cited by future Supreme Court judges as "a harbinger of a . . . libertarian judicial revolution." 89 Minn. L. Rev. 1500, 1506 (2005). For this, Barnett gives Justice Kennedy a hearty thanks, and awards him an "A."

Posted by: fnook | Apr 18, 2005 9:24:55 PM

Good post. And Herbert Spencer wasn't actually a Social Darwinist? Okay, he was a "Fabian."

The Volokh crowd scares me.

Posted by: praktike | Apr 18, 2005 10:17:00 PM

Who scares you more, the Christian Evangelicals or the the Libertarians?

Posted by: Lloyd | Apr 19, 2005 8:15:14 AM

The disingenuousness of the Volokh Conspirators is particularly galling, as anyone familiar with the legal scholarship of the past decade knows that many of them (Barnett and Bernstein in particular) are at the forefront of the whatever-you-want-to-call-it movement. Barnett recently published a book entitled Restoring the Lost Constitution : The Presumption of Liberty. Hmmm...doesn't this sound vaguely reminiscent of CIE?

Anyway, what I think is happening is that Barnett, Epstein and their ilk are used to operating in the (relative) obscurity of legal academia. Now that the kleig lights of the mainstream media are fixed squarely upon them, they're resorting to prevarication and dissembling rhetoric , rather than offering substantive rebuttals to their left-liberal interlocutors. Couldn't happen to a nicer group of reactionary ideologues.

Posted by: Yuval Rubinstein | Apr 19, 2005 8:57:26 AM

Shorter Version: There is a "Constitution in Exile" movement, but they don't call it that.

Posted by: C.J.Colucci | Apr 19, 2005 11:06:39 AM

"Who scares you more, the Christian Evangelicals or the the Libertarians?"

Depends on the evangelicals and the libertarians. Both are in fantasyland, pining away for a Golden Age that never existed.

Posted by: praktike | Apr 19, 2005 11:13:42 AM

Actually, I gave up on the Volokh crowd when they started shilling for the religious fundamentalists. Birds of a feather, IMO.

Posted by: paperwight | Apr 19, 2005 11:33:52 AM

Silly quibble...whether or not Randy Barnett and other Volokh conspirators are disingenuous, Richard Epstein is not. Epstein is about the most transparent and upfront scholar imaginable. He is also a much finer scholar than of the volokh conspirators.

Posted by: Finn | Apr 19, 2005 6:06:34 PM

You can't put it any better than C.J. did. Call it whatever you want, there's something of substance behind it. Bernstein made sure I knew it when he taught me Lochner nine years ago, although I haven't the slightest idea why he did that. He was teaching Evidence. Which maybe tells you something about the earnestness with which he did it, even then.

But no, I don't believe he ever used the phrase "Constitution in Exile."

Posted by: Kagro X | Apr 20, 2005 2:21:04 AM

After years of intentionally sloppy and insinuating usage of words like 'liberal' and 'morals' on the part of the right, it's difficult to find sympathy for a set of rightists who get stuck with an *accurate* label they don't like.

Posted by: P | Apr 20, 2005 12:30:17 PM

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

As for Holmes, at least, this is no "correction" at all; TR appointed Holmes and was damn sorry he did after Holmes's dissent in the Northern Securities case, having appointed Holmes in the expectation he'd go along with his trustbusting. The Souter of his day, if you will.

Posted by: Anderson | Apr 20, 2005 12:41:18 PM

Of course there is an organized "Constitution in Exile" movement. It is called the Federalist Society.

Lochner is a more complex case than most folk on the left or right realize. Everybody talks of Peckham's opinion and Holmes' dissent. People forget that there was another dissent in the case, too: I believe Harlan's. Harlan believed in substantive rationality review, but also believed that the majority's review was a triumph of ideology over evidence.

In other words, Harlan believed that Constitutional adjudication was an exercise in judgment. Peckham's approach was ideological; Holmes' was that of abject deference.

The Lochner of 1905 was a very different case than the Lochner of today's right and left. A more complex and interesting case, IMHO.

Posted by: Joe S. | Apr 21, 2005 1:28:28 PM

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.

I can't make any sense of that last sentence, unless you mean that the "Constitution in Exile" movement unifies Scalia and others in opposition to it. Scalia is a regular critic of Lochner (as Rosen's article itself notes), and people who believe in "the tradition that largely defers to Congress on matters of economic regulation" by definition aren't in favor of greater consideration of economic liberties.

Posted by: Stuart Buck | Apr 21, 2005 2:32:36 PM

For what it's worth, I think Joe S. and Stuart are basically correct. There are two substantial factions that oppose Lochner for different reasons. (I think perhaps this was a point made by Orin Kerr at Volokh) But there seems to be a third nascent faction seeking increased recognition amongst the judiciary, the Lochner revivalists, or whatever. They seek a middle road of semi-substantive due process that reaches out beyond the protection of intimate private matters and raises the bar on the ability of the public realm to regulate economic liberties in the private realm. They're serious libertarians and I don't mean that perjoratively.

Posted by: fnook | Apr 21, 2005 9:09:50 PM

Cutty Sark? We drink single malts, my good man. And we'll have a new Supreme Court justice much to our liking, I predict -- probably in the Scalia originalist mold.

Posted by: ScurvyOaks | May 6, 2005 12:45:59 PM