Constitutionalism in exile
By W. James Antle III
Given the Republicans' well-known propensity for snatching defeat from the jaws of victory, I wouldn't bet the farm – or even my modest northern Virginia townhouse – on them prevailing in the Senate stalemate over judges that currently has Washington all aflutter. But if the GOP does decide to detonate the so-called nuclear option, what exactly would the constitutional "day after" that their liberal detractors fear look like?
We've long been told that such a move would leave a smoking crater where Roe v. Wade once stood, and that precedents in affirmative action and church-state cases would similarly go ka-boom. More recently, liberal constitutional theorists have warned that conservative judicial nominees are part of a "Constitution in exile" movement that seeks to stitch back together the legal consensus of 1930, if not earlier.
Hello Judge Janice Rogers Brown, goodbye Brown v. Board of Education?
In reality, the phrase "Constitution in exile" – which I would love to have coined – has been culled from a book review Judge Douglas Ginsburg penned for Regulation magazine, principally by Jeffrey Rosen, writing in the New York Times Magazine, and Cass Sunstein, a respected University of Chicago law professor, to describe conservative jurists and academics with vastly different legal philosophies.
Consider: Constitution-in-exile judges are supposed to want to invalidate post-New Deal economic regulations, like Richard Epstein for instance, in an expansive reading of our economic freedoms. But Justice Antonin Scalia, widely touted as a model conservative judge, has been sharply critical of using judicial power in this fashion. Is he a judicial activist of the right? Even Clarence Thomas, arguably the most libertarian justice on the Supreme Court, has not come close to the Epstein line.
We can, for the most part, agree that alleged participants in this Constitution-in-exile conspiracy are constitutional originalists – they believe judges should be guided by the original meaning of the Constitution as amended. But beyond that, originalists differ widely among themselves. Some favor interpretation based on the original intent of the Framers; others seek guidance from the intent of the ratifying public; others still, probably now a plurality, look to the original public meaning of the text as ratified.
On top of this, originalists disagree about how deferential they should be toward existing precedent and other branches of government, especially the legislature. Part of the case against Robert Bork was that he was too reluctant – not too eager – to invalidate properly enacted statutes on constitutional grounds. Even today, when constitutional conservatives aren't being criticized for wanting to use the courts to strike down the New Deal, they are being criticized for wanting to do away with judicial review.
In other words, originalists are hardly a monolith. And few of judges President Bush is likely to nominate are among the most aggressive in their use of judicial power. Even Janice Rogers Brown, whose speeches have given some conservatives pause, has been more restrained in her actual jurisprudence. (U.S. civil-rights commissioner Peter Kirsanow has made the case for Brown at greater length.)
In a Legal Affairs debate with Sunstein, Boston University law professor Randy Barnett – author of Restoring the Lost Constitution: The Presumption of Liberty – suggested that the Constitutional-in-exile appellation might be intended to make originalists sound "like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms."
Originalism isn't about returning to particular period of time in our history or jurisprudence, or achieving a certain set of results (even if most constitutional conservatives find some of the results of liberal rulings, such as the post-Roe abortion regime, particularly atrocious). It is more concerned with process, recognizing the Constitution as written law that sets down rules that political actors – be they presidents, legislators or judges – cannot change on their own. It's hard to see any other approach consistently yielding fidelity to constitutional law.
But the people engaged in Constitution-in-exile fretting do have a point. Liberal anti-originalist jurisprudence has effectively exiled many provisions of the Constitution. The commerce and necessary and proper clauses no longer are read to effectively limit federal power; the Ninth and Tenth Amendments, along with privileges or immunities clause, have essentially been gutted to the point of judicial appeal.
The living (presumably outside of exile) document doesn't even grow consistently. The First Amendment's establishment clause grows while its free exercise clause contracts. The Second Amendment is read less expansively than favored sections of the First.
Liberals fear conservative judicial activism less because of the Bush nominees' records than their own. When they held uncontested power over the federal judiciary, they pioneered the idea that the Constitution mandated their social agenda, championing novel interpretations never anticipated by the Framers, the ratifying public or people on all sides of the major constitutional debates for generations. We needn't pine for an era of constitutional perfection that never existed to acknowledge that if there is no Constitution in exile, there is a Constitution with a lot of its teeth missing.
I'll let the cat out of the bag: I'm somebody who believes that a lot what the federal government has done since the New Deal is unconstitutional. But I don't think the constitutional remedy is for the courts to simply overturn everything, not that I am up for an appellate judgeship anyway. Notions of judicial infallibility have contributed to our constitutional erosion by letting the other branches off the hook.
There isn't some nefarious, radical movement afoot to bring back some imaginary Hoover-era Constitution. But there is a truly radical idea that the Constitution can be a fundamentally different document from year to year, based on judicial whim rather than the amendment process.
Note: My last column, "Conservatives Against Spending Cuts?", correctly identified the Institute for Policy Innovation's Lawrence Hunter as a conservative opponent of Social Security benefit cuts. But IPI and Hunter do favor spending cuts elsewhere in the budget to finance SS reform transition costs, not increased government borrowing. I regret the error.
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