The Constituton in Exile

The term "constitution in exile" has come to be used to characterize the ambitions of originalists to bring legal practice back into compliance with the written Constitution of government as originally understood by the Founders. It has been pointed out that the term is being used by progressive statists about their originalist opponents rather than by any originalist movement activists themselves. However, it is a good phrase that well conveys what many originalists aspire to achieve, even if they despair of success. So if you are looking for the movement that embraces the phrase, you've found it here.

One misrepresentation of the movement by its opponents needs to answered. They claim that the movement to restore constitutional compliance means "turning back the clock", to some date like 1932, not only on the expansions of government powers, but also on the protections of rights. That is not the aim of the movement, or at least not of this branch of it. We regard delegated powers as complementary of rights against the action of government: every delegation of power is a restriction of rights, and every right is a restriction of powers. To undo the expansions of powers is to expand rights, and we tend to agree with the protections of rights that the courts have embraced, just not with the expansions of powers. This movement is "libertarian", not "conservative". To be consistent with original understanding, we would need to go all the way back to undo the precedent of McCulloch v. Maryland, 17 U.S. 316 (1819). Some of the disagreement is not with the way court decisions were made, but with the opinions that justified them. Some is with a doctrine of stare decisis of binding, rather than only persuasive, precedent, as inconsistent with a written constitution being the supreme law, and not court decisions.

This page is intended to be a gateway to the movement and the writings by its proponents and adversaries. Of course, this entire site serves that purpose, but here the focus will be on the movement of legal scholars who most exemplify the phrase.

Articles

  1. HTML Version Remote Link - HTML The Constitution in Exile: Is it Time to Bring it in from the Cold?, William W. Van Alstyne, 51 Duke L. J. 1 (2000).
  2. HTML Version Remote Link - HTML Is "The Constitution in Exile" a Myth?, Eugene Volokh, The Volokh Conspiracy blog.
  3. HTML Version Remote Link - HTML Power Without Responsibility: How Congress Abuses the People through Delegation, Review by Douglas H. Ginsburg of book by David Schoenbrod, Yale U. Pr. 1995. First known use of the phrase "constitution in exile".
  4. HTML Version Remote Link - HTML Hoover's Court Rides Again, Cass R. Sunstein, Washington Monthly, September, 2004. A progressive law professor views the movement with alarm.
  5. Remote Link - HTML The Constitution in Exile. Announcement of Conference at Duke University, with instructions for ordering the proceedings (October 5-7, 2000).
  6. Remote Link - HTML The Return of Constitution in Exile?, by Jeffrey Jamison, Blog of the "progressive" American Constitution Society (January 25, 2005).
  7. Remote Link - HTML The Constitution in Exile, from Wikipedia, the free encyclopedia.
  8. Remote Link - HTML Constitution in Exile?, debate between Cass Sunstein and Randy Barnett, Legal Affairs magazine (May 2, 2005).
  9. Remote Link - HTML The Constitution in Exile, from the Pejmanesque blog of Pejman Yousefzadeh, April 17, 2005.
  10. Remote Link - HTML Liberals in Exile: Beware Their Grand Plan to Impose a Radical, European-Style Constitution on America, Michael S. Greve, American Enterprise Institute blog, May 2, 2005.
  11. Remote Link - HTML Is There A "Constitution in Exile" Movement?, from The Decembrist blog of Mark Schmitt, April 18, 2005. He seems to think there is a movement, albeit not yet a very coherent one.
  12. Remote Link - HTML Whose Constitution Wins?, from The Village Voice, Nat Hentoff, April 29, 2005.
  13. Remote Link - HTML Can Bush Supreme Court Appointments Lead to a Rollback of the New Deal?, William Consovoy, Wendy Keefer, Thomas McCarthy, Seth Wood, Federalist Society.

Books

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Original URL: http://www.constitution.org/cons/exile/exile.htm
Maintained: Jon Roland of the Constitution Society
Original date: 2005/9/4 —