|Is "The Constitution in Exile" A Myth?:
In a book review in the latest issue of The New Republic,
Cass Sunstein renews his claims that "[t]here is increasing talk [among
conservatives] of what is being called the Constitution in Exile â€" the
Constitution of 1932, Herbert Hoover's Constitution before Roosevelt's
New Deal." Sunstein has suggested this a number of times before (see,
e.g., here and here), and the claim has been repeated recently by The New York Times and by my colleague Jeffrey Rosen.
The suggestion is that influential conservative lawyers express their
goal for the courts as being the restoration of "the Constitution in
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
As best I can tell, the phrase "Constitution in Exile" originally appeared in a book review by D.C. Circuit Judge Douglas H. Ginsburg in 1995 in the course of discussing the nondelegation doctrine in the journal Regulation.
As you can see from the article itself, the use of the phrase is not
exactly prominent: it appears once, near the end of the introduction.
In any event, the use of the phrase in Ginsburg's review inspired lots
of critical commentary from legal academics, including its own
symposium in the Duke Law Journal (you can read the Foreward to the symposium issue here).
But my initial google and Westlaw research failed to uncover direct
evidence â€" beyond the initial book review, which I just read today â€"
that conservatives or libertarians have used this phrase to describe
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 â€"
"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.
enabled comments. I am particularly interested in uses of the phrase
"Constitution in Exile" by conservatives that I may have missed. (This
isn't my specialty area, so it's quite possible that it is in fact used
and I just missed it.) Also, if the comment function isn't working, try leaving a comment here.
UPDATE: Steve Bainbridge offers commentary here.
Cass Sunstein Responds to "Constitution in Exile" Post:
Last week I wrote a post "Is the 'Constitution in Exile' A Myth?,"
questioning claims that an influential block of conservatives have an
agenda for the courts that they themselves describe as restoring the
"Constitution in Exile." I noted that I could only find one use of the
phrase "Constitution in Exile" by a conservative â€" a single comment
buried in a 1995 book review by Judge Douglas Ginsburg. I asked whether
the phrase "Constitution in Exile" was something that conservatives
actually used, or rather was merely a phrase that critics (most notably
Cass Sunstein) have used to describe what they contend is a growing
conservative legal movement.
Cass Sunstein e-mailed me a response, which he has graciously agreed to let me post:
As you say, the phrase comes from Chief Judge Ginsburg of the DC Circuit, in a piece in Regulation
magazine. Without using the phrase, he also spells out his argument in
some detail in a remarkable piece on constitutionalism in the Supreme
Court Economic Review, from the Cato Institute. This piece has been
given as a lecture at several places, including the University of
Chicago Law School, where a packed room gave it respectful attention.
I have two responses, one
narrow and the other broader. The narrow point is that I understand
Sunstein to agree with my first post that there is no evidence that a
conservative has used the phrase "Constitution in Exile" outside of a
single reference in a 1995 book review. On this point, my apologies to
Professor Sunstein if I simply misread his prior writings; I had
understood Sunstein to be claiming that conservatives are themselves
using the phrase "the Constitution in Exile" to describe their legal
goals. To the extent that we are in agreement that the term is
primarily Sunstein's, and has not been used by conservatives outside of
a 1995 book review â€" and even then, apparently only as a descriptive
matter, not as a normative one â€" then that addresses the topic of my
prior post. This is an important point of consensus, I think: we can
all agree that there is no evidence that conservatives refer to their
agenda for the courts as restoring a Constitution in Exile.
glimpse of the argument: Judge Ginsburg writes that judges were
faithful to the Constitution for most of the nation's history - from
the founding, in fact, through the first third of the twentieth
century. But sometime in the 1930s, "the wheels began to come off." His
strongest complaint is about the Supreme Court's decision, in 1937, to
uphold the National Labor Relations Act. Judge Ginsburg objects that
this is "loose reasoning" and "a stark break from the Court's
precedent." In his view, the Court's acceptance of the National Labor
Relations Act is not merely "extreme"; it is also "illustrative."
Barnett's powerful book, Restoring the Lost Constitution, is definitely
in the same general vein (consider the title!); so too is some of the
work of my colleague Richard Epstein, especially but not only on the
commerce power. So too for much conservative writing on the
nondelegation doctrine. Justice Thomas writes significant opinions that
support the general goal (restoring the lost constitution, or what
Judge Ginsburg calls the Constitution in Exile), as of course you know;
and Scalia is often with him.
The idea of the lost
Constitution, or the Constitution in Exile, or the original
constitution, is very prominent in the conservative community. In fact
the idea of originalism goes hand-in-hand, for many people, with the
idea of a Constitution in Exile, whether or not that phrase is used. I
think the Constitution in Exile phrase is especially evocative, and I
admire Judge Ginsburg a great deal (despite major disagreements on this
point). But the goal is what's important, not the specific term, and it
seems to me that we've all witnessed the rise of that goal, especially
in the last decade or so, with the increasing assertion of a certain
form of originalism.
let's turn to the broader question, one that I did not address in my
first post: terminology aside, is there a conservative movement to
restore a pre-New Deal constitution? Unfortunately, I am not the best
person to answer this: I am not a constitutional theorist, don't really
follow the literature, and don't teach constitutional law. Nor do I
know how you measure when a certain amount of writing or scholarship
amounts to a "movement." If there is a conservative movement to restore
a constitution in exile, however, it is news to me. I can think of a
handful of conservative law professors who have some pretty far-out
views about how to reshape constitutional law, but I tend to think that
this says more about constitutional theory in legal academia today than
it does about any "movement" in conservative legal circles. Nor do I
see how their claims amount to wanting wholesale restoration of the
pre-New Deal constitution. Perhaps part of the problem is that I don't
see the direct connection between originalism and restoring a
constitution in exile. I see the former as a mode of constitutional
interpretation, and one that leaves open a reconciliation with stare
decisis. The latter apparently would dismiss stare decisis and attempt
to reconstruct a very particular constitutional order.
readers will agree with Sunstein that there is in fact a conservative
constitution-in-exile movement. But if you take this position, don't
you have to agree that there is a liberal constitution-in-exile
movement, too? Here's a thought experiment to show you what I mean.
Let's imagine Cass Sunstein has a cousin who is identical to Sunstein
in every way except one: he is a conservative. This conservative
version of Sunstein - let's call him Moonstein - could write something
There is increasing talk among
liberals of what is being called "the Constitution in Exile" â€" the
Constitution of the 1960s, Justice Brennan's Constitution. Their target
is Ronald Reagan and the Bushes, who they claim pushed a false
Constitutional vision designed to strip the Bill of Rights of its
essential guarantees and emphasize property rights over human rights.
They have set as their goal the restoration of the progressive
Constitution forced into exile by by a string of Republican
presidencies starting in 1968.
fair response to Moonstein might note that Moonstein is cherry-picking
a few comments and imagining that these professors have real influence
in order to create the impression of a major movement afoot. The fact
that a few law professors are arguing in favor of major constitutional
change shouldn't be terribly surprising: that's what constitutional law
professors do, right? My sense is that the same criticism applies to
Sunstein and claims of a conservative constitution-in-exile movement.
The organizing strategy
behind the liberal Constitution in Exile movement was explained by
Professor Mark Graber in a 2002 law review article, Rethinking Equal
Protection in Dark Times, 4 U. Pa. J. Const. L. 314 (2002). Graber
urged his fellow liberals to plot for the return of the progressive
"constitution in exile." He wrote: "Progressive arguments . . . are
best understood as constructing shadow constitutions or
constitutions-in-exile. Parties out of power in many nations form
shadow cabinets. These bodies consist of the persons who might hold
various executive offices when that coalition gains control of the
government. The American equivalent apparently is the shadow
constitution. Scholars out of power in the United States author various
shadow constitutions that detail the constitutional meanings that might
become the fundamental law of the land should the author's preferred
coalition gain control of the federal government."
the liberal Constutitution in Exile has become an increasingly dominant
theme of progressive legal thinkers. For example, a collection of some
of the nation's most prominent progressive legal minds (including Cass
Sunstein) will be meeting at Yale Law School in the spring to develop
"a shared vision of what, at least broadly speaking, that Constitution
in Exile is, so that we can support and work for its realization." A website and blog
set up for the conference reveals the agenda. For example, Bruce
Ackerman sets as one of the more modest items on the agenda to "[r]oot
out the federalism decisions since Lopez, and return to the status quo,
circa 1994. Root all of them out, not some of them." His more
"transformative" agenda would include "overrul[ing the] Slaughterhouse
[cases] and mak[ing] the [Privileges and Immunities] Clause the basis
for fundamental positive rights of citizenship." Other scholars at the
conference urge a new Constitution entirely. One scholar urges that the
Constitution must be reconceived to serve "a basic purpose: the
protection of human dignity." Another contends that the law must
"revisit both the 14/19th amendments and the general welfare clauses so
as to take on the deep inequalities of the contemporary social order
inside the United States, to reconceive the meaning of equality."
I have enabled comments. Please, civil and respectful comments only.
"Constitution in Exile" in NYT:
Tomorrow's New York Times magazine will feature a Jeff Rosen article on alleged conservative movement to restore the "Constitution in Exile." Slate has a preview here.
A prediction: The article will conflate efforts to restore textual
limits on enumerated powers with "Lochnerism" and judicial enforcement
of libertarian ideology. Rumor also has it at least one co-conspirator
will be featured in the piece.
Rosen on the "Constitution in Exile":
Iâ€™m sure the legal blogosphere will be abuzz with discussions of Jeff Rosenâ€™s N.Y. Times magazine piece on the purported "Constitution in Exile" movement.
Jeff was a Yale Law classmate of mine, and I'm generally a great
admirer of his work. But I do want to take issue with a couple of
things in this particular piece.
First, I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation
magazine in 1995. From then until 2001, I, as someone who knows
probably just about every libertarian and most Federalist Society law
professors in the United States (there aren't that many of us), and who
teaches on the most libertarian law faculty in the nation, never heard
the phrase. Instead, the 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 write about some dark conspiracy
among right-wingers to restore something called "the Constitution in
Yet, outside of Ginsburgâ€™s article, 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. 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. Would I, for example, be considered a
member of the "Constitution in Exile movement" even though I don't buy
Epstein's theory of the Takings Clause, and think Lochner was
probably wrongly decided? [UPDATE: It also matters because there's a
reason actual believers wouldn't use the "Constituion in Exile"
moniker. Unlike conservative orginialists, the more libertarian
elements on the legal right--the folks that Rosen interviews for his
piece--generally don't have any nostalgia for the pre-New Deal or even
pre-Warren Court jurisprudence on issues such as the Equal Protection
Clause's protection of minorities, the Incorporation of the Bill of
Rights against the states, the First Amendment, etc.; I know that both
Barnett and Epstein, for example, think Griswold was correctly decided,
and probably think Roe, or at least Casey, was too. The
phrase "Constitution in Exile" suggests a desire to revive pre-New Deal
constitutionalism whole hog, when the folks Rosen refers too mostly
want to add additional limits on government power. In fact, the
interest groups most critical to the Dems on judicial
nominations--feminists, ACLU, minority activists--would almost
certainly by happier with a Justice Janice Brown or Alex Kozinski than
with a Justice Luttig or Bork].
[material deleted; it was unfair]
Finally, Jeff, while not explicitly critical of libertarian
constitutional theory, does seem to be implicitly raising the alarm
regarding potential future conservative or libertarian judicial
activism. I hope it's not impolite to mention that this alarm-raising
comes with a touch of irony from someone whose first published law
review work defended the proposition that the Ninth Amendment protects
judicially enforceable natural rights, and, moreover, that courts
should refuse to enforce a constitutional amendment banning
flag-burning, because such an amendment would itself be an
unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991).
UPDATE: Oh, and it should go without saying that none of the
individuals Rosen identifies as pushing the purported "Constitution in
Exile movement"--Greve, Epstein, Barnett, Bolick, etc.--have any
political power. The odds that Bush will nominate a libertarian type to
the Supreme Court (unless its Janice Brown for other reasons) are slim
to none. He may nominate someone like Luttig who believes in some
limitations on federal power, but you would be hard pressed to find any
originalist who believes that the current scope of federal power
complies with the original meaning of the Constitution. Even Bork, who
certainly has little in common with Greve et al., has always
acknowledged this point, though he's argued that it's too late to do
anything about it, a rather odd (and politically convenient)
perspective for an originalist, and one that's always been
controversial even among his acolytes. And if the Bush people were
really intent on pushing a constitutional revolution, wouldn't they
have followed in Reagan's footsteps and appointed a prodigious fraction
of conservative and libertarian legal academics to the federal bench?
Correcting Rosen's History:
Rosen is a learned guy who has written some rather perceptive things
about the so-called Lochner era in his law review scholarhip. See 66
Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history. To wit:
Rosen: All restoration fantasies have a golden age, a lost world
that is based, at least to a degree, in historical fact. For the
Constitution in Exile movement, that world is the era of Republican
dominance in the United States from 1896 through the Roaring Twenties.
O.K., besides the fact that there is no "Constitution in Exile movement", there
is nothing blatantly inaccurate about the above; the Republicans did
dominate the United States from 1896 to the Roaring Twenties. But Jeff
is clearly implying that there was some correlation between libertarian
interpretation of the Constitution and Republican politics, in a way
that would both draw parallels to today, but also suggest that such
views have always been tied up in partisanship. In fact, however, some
of the most libertarian Justices of the period Jeff refers toâ€“Melville
Fuller (Cleveland), Rufus Peckham (Cleveland), and James McReynolds
(Wilson) were appointed by Democrats. Some of the most statist
Justicesâ€“Holmes (Roosevelt), Stone (Coolidge), Roberts (Hoover), and,
at the tail end, Cardozo (Hoover) were appointed by Republicans.
Constitutional interpretation simply wasnâ€™t a partisan (though it was a
political) issue, and with few exceptions the Justices of the period
from both parties accepted constitutional limitations on both federal
and state regulatory power that none of today's Justices would
Rosen: Even as the Progressive movement gathered steam, seeking
to protect workers from what it saw as the ravages of an unregulated
market, American courts during that period steadfastly preserved an
ideal of free enterprise, routinely striking down laws that were said
to restrict economic competition.
There is a wealth of scholarship, starting with historian Charles Warren in the 1910s and 20s, through recent work by myself and others (and Cushman, 83 Va. L. Rev. 559;
Melvin I. Urofsky, State Courts and Protective Legislation During the
Progressive Era: A Reevaluation, 72 J. Am. Hist. 63 (1985)), showing
that the Supreme Court, especially through 1923, rarely invalidated
economic regulations. The Court, and lower courts, allowed restrictions
on free enterprise ranging from bans on options trading to Sabbath laws
to child labor laws (at the state level) to a wide range of draconian
professional licensing laws to many, many more types of regulations.
Between 1923 to 1934, the Supreme Court grew somewhat more aggressive
about invalidating regulatory laws, but, at the same time, (1) state
courts virtually abdicated the field; and (2) even the Supreme Court
upheld some rather unprecedented and draconian regulations, such as the
Railway Labor Act (unanimous opinion at 281 U.S. 548).
Rosen: The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York,
which challenged a law that was passed by the New York State
Legislature, establishing a maximum number of working hours for bakers.
In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected
that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's
Social Statics," referring to the celebrated Social Darwinist and
advocate of laissez-faire economics.
Spencer has been unfairly tarred as a "Social Darwinist", and Holmes
himself is far more accurately depicted as a Social Darwinist, but I
wonâ€™t go into that here. I will say that first, Social Statics
is a book by Spencer, something that for some reason most
constitutional scholars donâ€™t know. The book advocated the libertarian
"law of equal freedom," which Holmes analogized to the sic utere tuo ut alienum non laedes
principle in law (use your property in such a way so that it does not
hurt that of others). Holmes pointed out that the sic utere principle
had never been adopted by the Court as part of the U.S. Constitution
(and indeed, the Court, Holmes noted, upheld many types of economic
regulation), so he could not understand why maximum hours laws would be
unconstitutional. Note that Holmes was neither accusing his brethren of
being Social Darwinists, or of adopting a laissez-faire view of the
Constitution; indeed, on the latter point, he was pointing out that Lochner
was inconsistent the with the Court's general indifference or hostility
to laissez-faire as a constitutional principle. By stating that the
Fourteenth Amendment did not enact Social Statics, Holmes was
simply stating that the Fourteenth Amendment did not require the states
to adopt a radical libertarian system of government.* (Relatedly,
Spencer was not simply an advocate of laissez-faire in the economic
realm, but a radical libertarian more generally, who, among other
things, was an early and passionate supporter of women's rights.)
Rosen: Even after the election of Roosevelt in 1932, the Supreme
Court continued to invoke laissez-faire economics to strike down
federal laws, including signature New Deal legislation like the
National Industrial Recovery Act.
You can read the NIRA case here,
and I challenge you to find any hint of laissez-faire economics in the
opinion. Indeed, the unconstitutionality of the fascistic NIRA was not
even controversial on the Courtâ€“all nine Justices, including Brandeis,
Cardozo, Stone, and Roberts, thought the law clearly exceeded federal
power. More generally, Jeff should know better than to mix and match
the Lochner line of due process cases and the scope of federal power
cases. The two lines of cases happened to both be overturned around the
same time during the New Deal, but they were in fact, separate lines of
cases, with separate rationales, and "inconsistent" results (e.g., the
Supreme Court upheld state child labor laws challenged under the due
process clause, but invalidated federal child labor laws as beyond the
scope of federal power).
I recognize that the history Jeff recounts is not the main point of
his article. However, if one is going to write about those who want to
restore pre-New Deal doctrines, it's important to know, as libertarian
academics who support full or partial "restoration" generally do, what
those doctrines actually were and what effect they had. Relying on
Progressive mythology in critiquing the views of libertarians who know
better simply isn't helpful.
* Clarification: Enforcing liberty of contract in one case hardly
means that the Court was adopting an overall laissez faire view of the
Constitution. Holmes was arguing that Lochner was a logical opinion
only if the Court was willing to apply sic utere broadly as a matter of
constitutional law. This is actually quite silly if you read the
majority opinion, which draws quite reasonable distinctions between
constitutional workplace regulatory laws meant to protect worker or
public health, and unconstitutional restrictions on liberty of contract
that have no valid "police power" purpose. Holmes was a master of the
flip aphorism, but one shouldn't confuse flip aphorisms with legal
The Constitution-in-Exile Myth Returns:
I just finished reading the New York Times
piece by my friend and colleague Jeffrey Rosen on the alleged
"Constitution in Exile" movement. Having written on this topic a few
months ago, see here and here, and also having discussed it a bit with Rosen during his research into the piece, I wanted to add a couple of thoughts.
my view, the problem with Rosen's essay is that it tries to portray the
decades-old writings of a small number of scholars and activists as an
existing and influential "movement." I don't think the evidence adds
up. The handful of scholars and activists that are supposed to make up
this alleged movement are pretty far removed from the set of players in
the Bush Administration that are actually setting policy and selecting
judges these days. Maybe the Reagan Justice Department was enthralled
with the writings of Richard Epstein; the Bush 43 Justice Department
Rosen downplays this problem, but I think a
close look at the evidence reveals that Rosen is stretching. For
example, here is what Rosen says about the influence of the alleged
C-I-E movement in the current administration:
influence of the Constitution in Exile movement . . is not always
clear, since the concerns of the White House often overlap with
concerns of conservatives broadly sympathetic to business interests or
the concerns of more traditional federalists. ''If you mentioned the
phrase 'Constitution in Exile' in White House meetings I was in, no one
would know what the hell you were talking about,'' a former White House
official, who spoke on condition of anonymity because of the
sensitivity of the topic, told me. ''But a lot of people believe in the
principles of the movement without knowing the phrase. And the nominees
will reflect that.'' According to the former official, during Bush's
first term, David S. Addington, the vice president's counsel, would
often press the Justice Department to object that proposed laws and
regulations exceeded the limits of Congress's power. ''People like
Addington hate the federal government, hate Congress,'' the former
official said. ''They're in a deregulatory mood,'' he added, and they
believe that ''the second term is the time to really do this stuff.''
the best we can do is get the view of one anonymous person that other
mostly unnamed people believe in a set of principles that the anonymous
person says match the views of this alleged movement? Surely the last
four years of Bush 43 would have provided more concrete evidence than
that. As for Addington, note what Rosen does not: that while Addington
in the Vice President's office urged DOJ to take a position that may or
may not have reflected the influence of the alleged movement, DOJ
apparently refused all of these urgings. So much for influence.
also overplays his hand in describing the development of the alleged
movement. Consider his description of Douglas Ginsburg's 1995 essay
that apparently contains the only known use of the phrase "Constitution
In Exile" by a conservative or libertarian. Rosen portrays the essay as
a manifesto urging an eager audience to take action:
1995, the Constitution in Exile movement had reached what appeared to
be a turning point. The Republicans had recently taken over both houses
of Congress after pledging, in their Contract With America, to rein in
the federal government. And the Supreme Court, by rediscovering limits
on Congress's power in Lopez, seemed to be answering the call. For
conservative advocacy groups and public-interest law firms, the
possibilities for litigation looked encouraging.
If you go back and read the actual article,
though, a different picture emerges. Ginsburg's alleged manifesto was a
review of a book by David Schoenbrod arguing for the return of a strong
nondelegation doctrine in constitutional law. The bit about the
Constitutution in Exile is a two-sentence paragraph at the end of
Ginsburg's introduction, before he turns to Schoenbrod. Ginsburg
doesn't applaud Schoenbrod's Constitution-in-Exile-ish proposal,
however; he is quite critical of it. Ginsburg's review argues that the
answer to the policy concerns raised by excessive delegation is not
constitutional law, but statutory law: he embraces an idea introduced
by Justice Stephen Breyer in a 1984 article in the Georgetown Law Journal
that expensive regulations should require affirmative Congressional
approval. While Rosen says Ginsburg called for a resurrection of the
Constitution in Exile, Ginsburg actually recommended Congressional
adoption of a proposal made by that right-wing radical Stephen Breyer.
reflection of the new mood, Douglas Ginsburg wrote an article in
Regulation, a libertarian magazine published by the Cato Institute,
calling for the resurrection of ''the Constitution in Exile.'' He noted
that for 60 years, proper constitutional limits on government power had
been abandoned. ''The memory of these ancient exiles, banished for
standing in opposition to unlimited government,'' he wrote with a hint
of wistful grandiosity, ''is kept alive by a few scholars who labor on
in the hope of a restoration, a second coming of the Constitution of
liberty â€" even if perhaps not in their own lifetimes.''
I have enabled comments. As always, civil and on-point comments only.
The NY Times and the Hunt For the "Constitution in Exile":
Given that the Constitution in Exile movement doesn't seem to exist, some may be wondering why the editors at the New York Times commissioned Jeff Rosen to write a long and detailed cover story about it for the Sunday Times magazine. I've been mulling it over, and have come up with four possible explanations for their interest:
Any old newspaper can report on a real trend, but it takes the paper of
record to invent one. Feeling emboldened by their successful invention
of "man dates" last week, the editors wanted a greater challenge.
I'm sure other possibilities exist, but these four seem the most plausible to me.
The Times editors have been reading lots of Hayek recently and have
become fascinated with libertarian thought. Their library stopped
subscribing to Regulation back in 1996, however, so they didn't know about more recent developments.
3) Any story that features a hot picture of Richard Epstein is going to sell a lot of newspapers. 'Nuff said.
Tainting future Bush judicial picks with some kind of shadowy extremism
might just influence a future Senate vote. All the better if the
shadowy movement doesn't actually exist: the harder it is to find the
movement, the harder it is to prove that Bush's pick has no connection
Accurate But Fake:
Over the past few weeks, I have had two interesting experiences with the fact checking process of the MSM: the New Yorker and the New York Times to be precise. The New Yorker
was the first to contact me to fact check Margaret Talbot's story on
Justice Scalia. In order to show that the Justice was exaggerating the
history of originalism, the original story contained some questionable
claims. I found it interesting, and reassuring, that the fact checkers
sought out a professor like me who subscribes to originalism to double
check these claims. All the errors I noted were corrected in the final
story, though of course this did not unduly affect its overall negative
slant. A week later, I was having dinner in Princeton with a group of
professors and graduate students after my talk there. When I asked if
anyone had seen the article, Keith Whittington (author of
Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review)
piped up that he had been contacted to fact check it. So not one but
TWO originalist scholars had been contacted. Very impressive indeed.
Last week, I was contacted by the NYT to fact check what was going to
be said about me in Jeff Rosen's Sunday Magazine story on the so-called
"Constitution in Exile" movement. Like others, I had never heard this
phrase until long after it was being used by "moderates" like Cass
Sunstein. As the blogosphere is already effectively dismembering the
substance of Rosen's in-depth report on the VLC (Vast Libertarian
Conspiracy), I thought I would confine myself to my experience with the
Times fact checking process.
Almost all the claims the fact checker wanted to confirm had some sort
of minor defect, most of which had nothing to do with the obviously
negative slant of the piece. For example, it described Angel Raich as
formerly paralyzed; it had the wrong number of states adopting medical
One erroneous claim, however, was definitely part of the story's slant
that I was a part of an organized "Constitution In Exile" movement:
that the Cato Institute had either paid for or published my book, Restoring the Lost Constitution.
This claim was removed from the finished article after I explained that
the book had been published by Princeton in its normal acquisition
process, but that Cato had assisted me during my university sabbatical
year when I wrote the first draft of the manuscript (as I acknowledge
in the book). Score one for the fact checking process.
The only accurate but misleading claim that remained was that my "book
identifies a series of regulations that he says the courts should
consider constitutionally suspect, from environmental laws to laws
forbidding the mere possession of ordinary firearms, therapeutic drugs
I knew about the environmental law issue, of course, as I mentioned it
to Jeff and offered it in the book as an example of an "unhappy ending"
that I think represents an oversight in the original Constitution. Jeff
had tried very hard to get me to say what laws would be
unconstitutional under my approach. As my approach is presumptive,
however, this is hard to answer in the abstract, as the success of any
challenge to a particular law will depend a lot on specifics. An
analysis of the constitutionality of any particular law would require a
So I pointed to the section of my book where I discuss what I think is
the unfortunate consequence that some environmental activities would be
within the jurisdiction of state not federal regulation. In the book, I
offer this as one of the very rare instances in which the Founders did
not anticipate a genuine cross-border national problem properly handled
at the national level. He ended up using this in his story, of course,
as I knew he wouldâ€"albeit without my disclaimer that I offered this as
an example of a bad consequence I would like to see corrected by
constitutional amendment (that would pass in a week if the Court ever
held Congress to its Commerce Clause power on this issue).
I had to ask the fact checker for the pages where I discuss "firearms,
therapeutic drugs, and pornography" as I did not recall having done so.
Sure enough all three examples are in one single sentence as
illustrations of the sort of pure "possessory" laws that would be
suspect under the conception of the state police power that I defend in
the book. When I read the fact checker the entire paragraph (he did not
have the whole sentence or a copy of the book), I stressed that it
applied only to pure "possessory" crimes. I told him that, contrary to
what the use of these examples implied, I never claimed that the
manufacture or sale of these items could not, constitutionally, be
regulated. He said that he would consult with the editors and get back
to me. Over dinner, it occurred to me that if they added "mere"
possession, this would ameliorate (though not entirely eliminate) the
implication that my approach ruled out all regulation. After dinner,
the phone rang and the fact checker informed me that the editors had
decided to insert the word "mere" in front of possession (without my
even suggesting they do so).
What is interesting about having experienced this fact checking process
first hand is that, in both cases, there was a sincere effort by the
fact checkers to verify suspect claims--claims that really were
inaccurate. In each case, where I explained my objections, these claims
were then corrected. Yet the overall misleading slant of the NYT story
was preserved. None of this is the fact checker's fault, or even the
fault of the fact checking process, which I found to be admirable. With
both the New Yorker
and NYT, the fact checkers were sincere in their desire to get the
facts correct. Both were very impressive and the resulting articles
were more accurate as a result.
But an important lesson here is that accurate facts can still be used
to compile a highly distorted story like the one by Jeff Rosen, a
person I have known and respected for many yearsâ€"dating back to his
very useful student article on the founders' conception of unenumerated
rights. It was out of this respect for Jeff that I gave him a long and
candid phone interview last February, but I could tell from the
questions what the slant would ultimately be.
Despite the MSM's claim to greater accuracy than blogs, fact checkers cannot alter the spin an author can put on what the National Lampoon
used to call "true facts"â€"especially when this is the very spin the
editors had in mind when they solicited the article. Apart from the
inaccurate constitutional history noted by David, I cannot quarrel with
any of the facts reported in Jeff's piece. They are true, even if the
impression given by the story to credulous readers of the New York
Times is false. Fittingly, the "accurate but fake" nature of the
"Constitution in Exile" story is best illustratedâ€"literallyâ€"by the
unrecognizable morgue photos of Richard Epstein and Michael Greveâ€"both
would be completely unrecognizable to me had I not read who they were
supposed to beâ€"and the "Snidely Whiplash" picture of Chip Mellor.
While all were certainly actual photos taken of these three men by the
Times photographer, at the same time they all were fake. How fitting.
Rosen Channeling Schwartz:
Back in March 1987, Prof. Herman Schwartz wrote an article for The Nation that bears striking resemblance to Rosen's N.Y. Times
piece (to be clear, I'm not accusing Rosen of plagiarism, or even of
ever having read Schwartz's article; it's just that 1987 seems like a
time of similar hysteria over perceived libertarian influence on
conservative judicial thought prompted, as in 1987, by a forthcoming
vacancy on the Court, and by the nomination of a libertarian (Bernard
Siegan instead of Janice Brown) to a Court of Appeals seat. Of course,
Siegan got voted down, and the next USSC nominee was the very
unlibertarian Robert Bork):
A new breed of theorists is calling for vigorous judicial activism
in defense of--what else?--property rights. Concurrently, the pre-New
Deal Supreme Court, which struck down federal and state laws against
union busting, child labor and other abusive business practices, is
back in favor. . . . This neo neoconservatism has been most thoroughly
developed by University of Chicago Law professor Richard Epstein, one
of the administration's most influential legal advisers. . . Epstein
argues that those clauses of the Constitution that forbid the
government to take over private property except for public use and wit
fair compensation, and that bar the states from excessive interference
with contracts, where intended to ensure that private property remained
virtually sacrosanct. He then reads those clauses as rendering
unconstitutional most welfare, environmental, is stating gift tax,
renewal, zoning and then control laws, along with almost every other
piece of social legislation of the past two centuries. Unlike most
constitutional lawyers, he thinks the Court decided correctly in Lochner v. New York,
when, in the name of property and contract rights, it struck down an
attempt to limit working hours for bakers. . . . Such judicial activism
is usually condemned in the administration circles. . . . Nevertheless,
this new faith in an activist judiciary is gaining ground among some on
the right who are normally its harshest critics.
Schwartz's concerns about a libertarian takeover of the federal
judiciary were, alas, seriously premature, as are, undoubtedly,
Rosen's. In fact, though libertarians are a growing (though still
miniscule) presence in legal academia, their political influence has
probably decreased where it counts. Republican honchos are more
concerned than ever about their religious conservative base, and the
relevant folks in the Justice Department--who in the Reagan years were
a highly intellectual group that took ideas, including libertarian
ideas very seriously--are undoubtedly very bright, committed
conservative lawyers, but show, as far as I can tell, few signs of
similar intellectual ferment (in practicalterms, e.g., other than
McConnell, where are the Borks, Winters, Easterbrooks, Ginsburgs,
Williamses, and Posners on the judicial nomination radar screen?)
Randy Barnett Wins Spooner Award:
No, not for supposed spoonerisms,
which he isn't prone to, and which are named for a different Spooner.
Laissez Faire Books awarded him their 2004 Lysander Spooner Award for
Advancing the Literature of Liberty, for his Restoring the Lost Constitution. Congratulations to Randy!
Laissez Faire Books' blog also has a post on Randy and that New York Times Magazine article.
Over at Legal Affairs,
the Debate Club will be featuring a debate this week between Cass
Sunstein and co-blogger Randy Barnett about the alleged
Constitution-in-Exile movement. Only Cass has written so far, and his
initial post strikes me as, well, odd. His post is very vague, but if
I'm not mistaken he is suggesting that many or most judicial
conservatives believe in some kind of radical vision of the
Constitution in Exile. The key question seems to be which radical
vision different conservatives like: as best I can tell, Sunstein is
suggesting that some like Ginsburgian strike-everything-down radical
activism, while others like Scalian uphold-everything radical activism.
Huh? Well, I guess we'll have to wait and see how the debate shakes
out. Of course I'll be particularly interested to see what my
co-blogger Randy has to say. (Hat tip: Howard)
UPDATE: Randy posted his initial reply to Sunstein just I was posting. An excerpt:
me begin this week-long exchange, Cass, with a denial. There is no
"Constitution in Exile" movement, either literally or figuratively. As
for literally, I and others had not even heard the expression, plucked
from an obscure book review by Judge Douglas Ginsburg, until well after
folks like you and Jeff Rosen had started using it to describe their
intellectual opponents. And as author of the 2004 book, Restoring the
Lost Constitution: The Presumption of Liberty, I would seem to be at
the heart of whatever movement supposedly exists.
Sounds like it will be an interesting week over at Debate Club.
obscure reasons that we may perhaps glean from this week's debate, the
phrase "Constitution in Exile" viscerally appeals to critics of
scholars and judges who, like me, favor interpreting the Constitution
as amended according to its original meaning. Maybe it makes these
"originalists" sound kooky or marginal or radicalâ€"like Russian nobility
with their shadow governments futilely planning their return to power
from the irrelevant comfort of London tea rooms. Maybe this rhetorical
move has something to do with undermining future nominees to the
Supreme Court who may be originalists.
More on the "Constitution in Exile":
In a previous post
on the purported (but non-existent) "Constitution in Exile movement," I
suggested that liberals who use the phrase are likely trying to imply
not simply that some elite legal libertarians would like to revive
constitutional limitations on government power that were enforced
before the New Deal, but also that these scholars were hostile to all
constitutional law jurisprudence that developed since the New Deal. But
Unlike conservative originalists, the more libertarian elements on
the legal right--the folks that Rosen interviews for his
piece--generally don't have any nostalgia for the pre-New Deal or even
pre-Warren Court jurisprudence on issues such as the Equal Protection
Clause's protection of minorities, the Incorporation of the Bill of
Rights against the states, the First Amendment, etc.; I know that both
Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too [update: Will Baude points out that Epstein has been critical of Roe and seems skeptical of Casey].
Now, Cass Sunstein writes:
Would the Constitution of 1787, or of 1920,* increase our liberty or
diminish it? For now, let's just notice the real radicalism of any
effort to go in that direction. In 1787 and in 1920, racial segregation
by the federal and state governments was believed to be constitutional.
In 1787 and 1920, sex discrimination by government was just fine. In
1787 and 1920, there was no general right of privacy. In 1920, free
speech was understood quite narrowly. Congress would almost certainly
have been forbidden to protect workers' right to strike. In 1920,
minimum wage laws were unconstitutional.
But as co-blogger Randy points out in a response to Sunstein, there
doesn't seem to be anyone out there, liberal, conservative, or
libertarian, who thinks that the pre-New Deal Supreme Court had things
completely right, or even almost right. Conservative originalists
object to the entire line of Lochner cases, including Meyer, Adkins, and Gitlow
(see below). Libertarians (and many conservatives) think the Court had
too narrow an interpretation of freedom of speech, and tunnel vision on
issues of race.
But perhaps Judge Doug Ginsburg, originator of the "Constitution in
Exile" phrase, is an exception, and he, and perhaps a secret group of
acolytes, want to restore constitutional law to its state in 1930?
For Judge Ginsburg, and for some others, the court had the
Constitution right in 1930. Judge Ginsburg also believes that the
Constitution in Exile forbids Congress from "delegating" its authority
to administrative agencies, such as the Environmental Protection
Agency, by giving them broad discretion. Judge Ginsburg believes that
since 1930, the Supreme Court has "blinked away" individual rights,
above all the right to private propertyâ€"and created rights of its own
choosing, like the right to choose abortion.
But here is the sum total of what Judge Ginsburg has to say about the "Constitution in Exile":
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.
I find it difficult to tease out of this paragraph--much less out of
Ginsburg's subsequent repudiation of the nondelegation doctine in the
same piece--what Sunstein does.
*Sunstein uses 1920 advisedly, because by 1930--still pre-New Deal days, let's keep in mind--the Court had dealt a blow to sex discrimination in Adkins v. Children's Hospital (later reversed by a New Deal Court decision), and Meyer v. Nebraska
in 1923 had recognized broad liberty rights under the Due Process
Clause, likely including a version of the right to privacy, but New
Deal decisions had cabined such rights dramatically until Griswold v. Connecticut in
1965. So, if anything, in at least some ways the pre-New Deal Court was
far more agreeable to Sunstein on "liberty" issues than was the New
Deal Court. (And the Court's broader free speech jurisprudence began
with Gitlow in 1925.)
Debate With Sunstein--Part Deux:
My reply to Cass Sunstein's latest post on the "Constitution in Exile" is now up in the Legal Affairs Debate Club. Sunstein-Barnett Debate, Episode III:
My reply to Cass Sunstein's latest post on the "Constitution in Exile" is now up at LegalAffairs' Debate Club. For another take on the so-called Constitution-in-Exile movement, check out Michael Greve's essay Liberals in Exile. A Revisionist View of Bolling v. Sharpe:
In yesterday's installment of the Sunstein/Barnett debate, Sunstein raised the case of Bolling v. Sharpe, holding that the federal government may not segregate schools in the District of Columbia. Randy responded:
You are right to point out that the Supreme Court's decision in Bolling v. Sharpe
is very difficult to reconcile with the text of the Constitution. For
this reason, you know that among constitutional scholars of all stripes
Bolling is one of the most controversial and difficult cases
ever decided by the Court. I do not have a fully worked-out opinion on
this complex issue, but suppose that a commitment to originalism
entails the reversal of Bolling.
I have an article forthcoming on Bolling in the Georgetown Law Journal,
in which I explain that Bolling has been incorrectly interpreted as a
"reverse incorporation" case applying 14th Amendment equal protection
standards to the Federal government under the Fifth Amendment, when it
was really a pure Lochnerian due process case, a fact Warren ultimately
chose to obscure in the final opinion. I conclude:
[W]ith its roots in Buchanan v. Warley and the 1920s
educational liberty cases, the liberty right to be from from compelled
segregation in education is perhaps better-grounded than the [currenly
recognized] liberty right to terminate oneâ€™s pregnancy, to engage in
homosexual sodomy, or to be free from arbitrary punitive damages
awards. This will not satisfy critics who oppose the Courtâ€™s
substantive due process jurisprudence across the board. But for the
vast majority of legal scholars who do support the Courtâ€™s current
substantive due process jurisprudence, Bolling should be an easy case to defend.
Sunstein-Barnett Debate, Round 4:
My response to Cass Sunstein's latest foray on the so-called "Constitution in Exile" is up now on the LegalAffairs Debate Club. Only one more round to go. Sunstein-Barnett Debate, Grand Finale!
In his last post of our week-long debate on the supposed "Constitution
in Exile" movement, Cass Sunstein goes out with a bang. My final reply
is now posted here. Three Lessons for the Great Debate About to Begin:
I recall very well the debates over the nominations of Robert Bork and
Clarence Thomas to the Supreme Court. Both featured the most elevated
public discourse over constitutional interpretation in my lifetime. Of
course, both nominations were also marred by ugly personal attacks and
false charges. For the upcoming nomination, we can expect both types of
discourse. To that end, some may wish to review the debate I recently
had with Cass Sunstein over at LegalAffairs.org.
Cass and others such as Jeff Rosen have promoted the trope
"Constitution in Exile" to describe those who favor enforcing the whole
Constitution according to its original meaning. The alternative is to
enforce only portions of the text according to whatever meaning yields
It is useful to review this debate to see the difference in our
approaches so one can better track and participate constructively in
the forthcoming debate. My approach focuses on restoring portions of
the "lost" Constitution that the Courts have long ignored--such as the
Commerce Clause, the Necessary and Proper Clause, the Second Amendment,
the "public use" portion of the Takings Clause, the Ninth Amendment,
and the Privileges or Immunities Clause of the Fourteenth Amendment.
Cass consistently focused, not on the text of the Constitution, but on
a list of results--either good results he favored preserving or bad
results he contended that the fictitious "Constitution in Exile
movement" wanted to achieve.
LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.
This debate should not allowed to be turned into a debate over results.
It should instead be a debate over constitutional method and the
restoration of portions of the text that have long been discarded. This
includes challenges to judicial conservatives who, like Justice Scalia,
would continue to ignore the Ninth Amendment or Privileges or
Immunities Clause because they fail to meet his standard for a "rule of
law." Ignoring portions of the Constitution because they fail to
conform to your theory of the "rule of law" is no different than
ignoring portions that fail to conform to your theory of "justice."
LESSON TWO: Watch the switch from meaningful scrutiny to extremely
deferential "rational basis" scrutiny, as a means of continuing to
ignore portions of the text.
And by "ignoring" I include adopting an extremely deferential "rational
basis" approach that yields all discretion to the legislative branches,
as Justice Stevens explicitly and Justice Scalia implicitly recently
did in the medical cannabis case when applying the Necessary and Proper
Clause. This is a game that both "liberals" and "conservatives" can
play. It is not "activist" for judges to demand of legislatures that
they have a real and justified reason for restricting the liberties of
the people--something more than mere assertion. Whenever legislatures
need not meet any burden of justification whatsoever--e.g. Justice
Stevens' approach in both Raich and Kelo--the scheme of federalism and limited enumerated powers is undermined.
LESSON THREE: Watch for an appeal to "precedent" to attack a nominee
who may favor reviving the original meaning of portions of the
text--e.g. the "public use" portion of the Takings Clause--that have
been ignored for far too long.
Another technique for ignoring the text is to elevate the importance of
past nonoriginalist judicial decisions in the name of "precedent." The
"liberal" side of the Court has never accepted the "precedents" of Lopez and Morrison.
Nor could "liberal" or "moderate" justice be counted on to accept any
precedent that does not accord with the results that drive their
approaches. For the same reason, a "conservative" (or libertarian)
Justice should give little weight to nonoriginalist precedent that
justifies ignoring portions of the text. It is the Constitution to
which a judge (and Senator) takes an oath, not past decisions by the
Supreme Court. The issue of precedent is very complicated, however. I
explain some of these complications here.
On the other hand, you may expect nominees to deflect potential
criticisms by embracing precedent to avoid the charge that they would
revive now ignored portions of the text. Given that many originalists
do favor adhering to precedent, this defense may be entirely sincere.
To the extent, however, that a nominees is willing to elevate the past
opinions of the Court over the text of the Constitution where the two
clearly conflict, he or she would be abandoning anything like an
originalist approach to interpretation. This would not be a good sign
for the future. Inevitably selective reliance on precedent is one of
the most common methods of avoiding the text of the Constitution when
the text is an obstacle to achieving particular results--my definition
of "judicial activism."
Let me offer as my hope for this forthcoming debate, the penultimate paragraph of my exchange with Cass:
Over the course of this week, Legal Affairs readers have
been provided a preview of a great debate that lies ahead. As my final
contribution to our discussion, let me express my hopes and aspirations
for that debate. I hope that the political process upon which we rely
to select Supreme Court Justices will not be thwarted by name calling,
conspiracy mongering, or false claims about bad motives on either side.
I hope that judicial nominees will not be presented with a laundry list
of results intended to serve as a litmus test for ideological
acceptability. I hope they will be asked instead about their judicial
philosophy and their commitment to the rule of law. I hope that those
who participate in this great debate will frame their arguments in
language that clarifies the issues rather than obscures them. And I
most fervently hope that the debate will not be conducted in a
topsy-turvy newspeak that charges originalists with being
insufficiently conservative and equates adhering to the rule of law
supplied by the Constitution of the United States with activism or
You can read the entire debate here.
Justice Thomas On Precedent:
In my earlier post I offer this as Lesson Three for watching the upcoming Supreme Court confirmation hearings:
LESSON THREE: Watch for an appeal to "precedent" to
attack a nominee who may favor reviving the original meaning of
portions of the text--e.g. the "public use" portion of the Takings
Clause--that have been ignored for far too long.
On Pejmanesque, Pejman Yousefzadeh, observes:
One of the reasons why I like Justice Thomas is that while
he respects precedent, he is willing to cast it off if the original
precedential decision did not conform with original intent. And why
shouldn't he? There is no point in compounding a mistake, after all.
He then links to his interesting Tech Central column, Needed: Thomist Jurisprudence. Here is a taste of that:
Those who -- like me -- are disheartened by the decisions
in Raich and Kelo may potentially take heart in the hope that Justice
Thomas's powerful dissents will have sown the seeds for the emergence
of a Court majority in the future that will reflect Justice Thomas's
thinking. Perhaps that new majority will be crafted via help from
Justice O'Connor's successor -- who could do worse than to adopt
Justice Thomas's approach to the law and to intellectual issues. As law
professor Orin Kerr puts it, "The next time someone insists that
conservatives like Justice Thomas will do anything to defend corporate
interests against the powerless -- and particularly against powerless
racial minorities -- feel free to point them to Justice Thomas's
eloquent dissenting opinion in Kelo. So much for that idea."
Let me take this as an opportunity to make two points:
First, Justice Thomas is a conservative politically, not a libertarian.
I am completely certain of this because I have personally heard him say
so very recently and with gusto. Nevertheless, while there are Thomas
opinions with which I disagree (e.g. his dissent in Lawrence v. Texas),
his philosophy of judging comes closest to the one I recommend, which
shows how method should come before results. Where I disagree with him,
it is incumbent upon me to show how he has deviated from original
meaning (as I think he sometimes has done). I still find it interesting
that Justice Scalia did not join Justice Thomas in his concurring
originalist opinions in Lopez and Morrison, or Justice Thomas's originalist dissenting opinion in Kelo. In Kelo,
Justice Scalia (along with Justice Thomas) joined Justice O'Connor's
excellent, but nonoriginalist, dissent instead. I believe this tells us
much about the different judicial philosophies of these two
Second, it is worth considering Justice Thomas's own words about precedent from his Kelo dissent:
The Court relies almost exclusively on this Courtâ€™s prior
cases to derive todayâ€™s far-reaching, and dangerous, result. But the
principles this Court should employ to dispose of this case are found
in the Public Use Clause itself, not in Justice Peckhamâ€™s high opinion
of reclamation laws. When faced with a clash of constitutional
principle and a line of unreasoned cases wholly divorced from the text,
history, and structure of our founding document, we should not hesitate
to resolve the tension in favor of the Constitutionâ€™s original meaning.
This is the judicial philosophy that I hope will be shared
by whoever the President decides to nominate. Otherwise, "judicial
conservatives" will forever be taking their orders from nonoriginalist
justices of the past, rather than from the text of the Constitution to
which they take their oaths, and which most of the people still think
should restrict those who govern them.
Article on Bolling v. Sharpe:
SSRN has posted my article, "Bolling, Equal Protection, Due Process, and Lochnerphobia," forthcoming in the Georgetown Law Journal. Here is the abstract:
In Brown v. Board of Education, the United States Supreme
Court invalidated state and local school segregation laws as a
violation of the Fourteenth Amendment's Equal Protection Clause. That
same day, in Bolling v. Sharpe, the Court held unconstitutional
de jure segregation in Washington, D.C.'s public schools under the
Fifth Amendment's Due Process Clause. Fifty years after it was decided,
Bolling remains one of the Warren Court's most controversial decisions.
The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling
Court stands accused of inventing the idea that due process includes a
guarantee of equal protection equivalent to that of the Fourteenth
Amendment's Equal Protection Clause.
A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling
as an opinion relying on an equal protection component of the Fifth
Amendment's Due Process Clause is incorrect. In fact, Bolling was a
substantive due process opinion with roots in Lochner era cases such as
Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner.
Another surprise is that the proposition that Bolling has
come to stand for, that the Fifth Amendment prohibits discrimination by
the Federal Government, was not simply made up by the Supreme Court,
but has a basis in longstanding precedent.
Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.