Posted on 07/26/2005 1:35:27 PM PDT by RWR8189
PRESIDENT BUSH'S NOMINATION of John Roberts to the Supreme Court has brought into public view a hitherto-obscure movement, or conspiracy; or maybe just an obscure hoax: the "Constitution in Exile" movement. The concern that Roberts might be part of this shadowy group was voiced most explicitly by the editorial board of the Minneapolis Star Tribune:
If [Roberts] won't answer, if he falls into word games and other avoidances, or if he indicates he subscribes to the beliefs of Scalia, Thomas and other supporters of the so-called "Constitution in exile"--meaning the Constitution as it was interpreted prior to the New Deal--then he should not be confirmed.
The Star Tribune's concern is not unique; Googling "Roberts 'Constitution in Exile'" currently generates more than 400 references.
If you've never heard of the "Constitution in Exile," you're not alone. The catchy phrase originated in a 1995 book review by Judge Douglas Ginsburg, which was published in the journal Regulation:
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.
In the ten years that have since elapsed, it is not clear that any conservative has ever used the phrase "Constitution in Exile" in any published writing. But fear of this fictitious "movement" caught on quickly on the left. Liberals like Cass Sunstein have railed against the "Exiles." In April of this year, liberal fears of a Constitutional restoration broke into the mainstream with an article by Jeffrey Rosen in the New York Times Magazine, titled "The Unregulated Offensive." Rosen articulated the central tenet of what he repeatedly referred to as the "Constitution in Exile movement": the "thesis that many of the laws underpinning the modern welfare state are unconstitutional." Rosen warned that if the "movement" prevails, federal regulations in areas as diverse as securities regulation and environmental protection may be struck down. And he explicitly linked the alleged movement's resurgence to President Bush's impending Supreme Court nominations, quoting Chris DeMuth of the American Enterprise Institute:
"I think the president and his top staff have shown really good taste in their court of appeals nominations,'' DeMuth told me during a visit to the institute, "and when the Supreme Court opening comes up, they will be very strongly inclined to nominate people from our side."
DeMuth was especially enthusiastic about the possible candidacy of Michael W. McConnell, a federal appellate judge in Denver and a former University of Chicago law professor who worked with DeMuth at the Office of Management and Budget in the Reagan administration. . . . Most of the other names on Bush's short list have similar qualities: J. Michael Luttig, a federal appellate judge in Virginia, is a vigorous proponent of the view that some federal environmental laws exceed Congress's powers to regulate interstate commerce; John Roberts, a federal judge in Washington, has also questioned whether some applications of the Endangered Species Act exceed Congress's regulatory powers.
Put briefly, the liberal fear is that conservative judges may resurrect decisions such as Lochner v. New York, decided by the Supreme Court in 1905, which invalidated on "substantive due process" grounds a New York statute which limited the number of hours that could be worked by bakers. The Court held that the law unconstitutionally infringed "the general right to make a contract in relation to his business [which] is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution." (198 U.S. at 52) The return of this pre-New Deal jurisprudence is the liberals' ultimate nightmare when they contemplate a conservative Supreme Court. The Star Tribune expressed it this way:
Of all the threats to the nation posed by a radicalized court, the threat to return to a narrow, pre-New Deal view of the commerce clause is the gravest. It would render unconstitutional almost all advances of the last 60 years in environmental and regulatory law, in the process turning the United States into a less healthy, less safe and far more brutish place than it is today. What is Roberts' view on the limits of Congress' power under the commerce clause?
This formulation is interesting, because instead of referring to the actual theory on which the pre-New Deal Court invalidated economic legislation--substantive due process--the Star Tribune shifts over to the commerce clause. Why?
For two reasons: First, the idea that any significant number of conservatives want to revive Lochner and substantive due process is ludicrous. For better or worse, application of substantive due process to generally accepted economic regulations is a dead letter, and there is virtually no one who wants to resurrect it. The describes Justices Scalia and Thomas as "supporters of the so-called 'Constitution in Exile,'" but in fact, Scalia is the Court's most implacable foe of the concept of substantive due process, which he has bitterly denounced:
The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called "substantive due process") is in my view judicial usurpation.
So it is hardly plausible to suggest that any noteworthy conservative judges yearn to bring back the days when substantive due process was used to invalidate liberal legislation.
But there is a second, more important reason for the liberal reticence on this topic: The fact is that substantive due process is alive and well, but on the left. It is now liberals who use this doctrine to strike down legislation of which they disapprove, especially in the social sphere. A perfect example is Lawrence v. Texas, in which the Court held that Texas statute prohibiting homosexual sodomy was unconstitutional. The Court's majority relied on the same substantive due process doctrine that led an earlier Court to strike down wage and hours laws. Justice Kennedy wrote:
We conclude that the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct [sodomy] in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. . . . There are broad statements of the substantive reach of liberty in earlier cases . . .
The liberty protected by the Constitution allows homosexual persons the right to make this choice.
So the same reasoning that the Court used in 1905--the Constitution's guarantee of liberty protects a baker's right to work more than 60 hours a week, if he so chooses--was used in 2003 to hold that the same guarantee of liberty protects a homosexual's right to sodomy. Why freedom of sex but not freedom of contract? Who knows? But in any event, it is clear that the left does not want to abandon the doctrine of substantive due process; it merely wants to continue using it to liberal ends. Conservatives like Justice Scalia, on the other hand, take a principled position: there is nothing in the Constitution that guarantees the right to work more than a certain number of hours a week, nor is there anything that guarantees a right to sodomy, abortion, etc. These are public policy issues on which judges, as citizens, may hold strong opinions; but nothing in the Constitution creates a right that trumps the democratic process.
THIS IS WHY liberals have shifted their focus from the actual basis of the conservative rulings of the first third of the century--substantive due process--to the commerce clause. What significance, then, does this truncated version of Constitution-in-Exile-phobia have? Not much. The commerce clause cannot be used to invalidate state legislation (like the New York law at issue in Lochner), and a large majority of federal economic regulations incontestably involve interstate commerce. Cases in which the scope of the Constitution's commerce clause--"The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"--is decisive will be relatively few and relatively insignificant.
THE ONE COMMERCE CLAUSE CASE that liberals have used to attack Judge Roberts illustrates this point. People for the American Way, in its dossier on Roberts, says:
Roberts has limited judicial experience, but even his short tenure as a judge raises serious concerns about his ideology and judicial philosophy. For example, dissenting opinions by Roberts have questioned the constitutionality of the Endangered Species Act . . .
The reference is to Rancho Viejo v. Norton. This case arose under the Endangered Species Act; the Fish and Wildlife Service blocked a California real estate development project because it jeopardized the arroyo southwestern toad. A three judge panel of the Court ruled against the developer's appeal, and the developer petitioned for en banc review by the entire court. A majority declined to hear the case en banc, but Judge Roberts dissented. He argued that the Court should have heard the developer's argument that the regulation at issue did not constitute a "[regulation of] commerce . . . among the several States":
The panel's opinion in effect asks whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so. Thus, the panel sustains the application of the Act in this case because Rancho Viejo's commercial development constitutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce.
Such an approach seems inconsistent with the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000).
The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ''Commerce . . . among the several States.''
Judge Roberts's point was not that the Endangered Species Act was unconstitutional, but that its application to the specific facts at issue may not be constitutionally justified by the commerce clause. Further, Roberts specifically noted that, apart from the commerce clause, there may be other legitimate constitutional bases for the Fish and Wildlife Service's action which should be considered by the Court.
Any suggestion that Judge Roberts's jurisprudence contains a hint of a desire to revive the "Constitution in Exile," understood as a return to the pre-New Deal jurisprudence of Lochner and similar cases, is absurd.
In truth, what the left fears is not that conservative judges will follow the liberal lead and create new "conservative rights" that are mentioned nowhere in the Constitution. Rather, the left fears that conservative judges will read the Constitution as written and attribute meaning to the commerce clause, the takings clause, the Second Amendment, and other "forgotten" provisions of that document, while at the same time abandoning the left's project of using substantive due process to impose liberal policy preferences where those preferences fail to command a popular majority.
For understandable reasons, those are fears that the left prefers not to articulate in public.
John Hinderaker is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.
The mere use of that phrase is a blanket admission of the violence done to the constitution by the left.
As my daughter would Valley-speak: "Like, DUH!"
"ancient exiles, banished for standing in opposition to unlimited government,"
Bump for the TRUTH!
"return to a narrow, pre-New Deal view of the commerce clause "
Yes, PLEASE, we had a Constitution before FDR stole it.
Now let's get it back!
On rare occasions if you manage to witness a real debate between a knowledgeable liberal, and a non-liberal, you will note that the liberal makes arguments that obscure the non-liberal's principles, whereas the non-liberal will make arguments that bring the liberals' principles more into the light.
BTTT!!
Since they brought it up..."constitution in exile" sounds great..another VRWC..THE CIE..we need secret hand shack and sign to recognize one another.
"I can say I disagree with Justice Ginsburg, I can say I think Souter and Kennedy have been disappointments, but I would never state that anyone who might agree with them is UNFIT to serve. Not my choice, certainly, but UNFIT?"
If you won't say it, I will.
Anyone who thinks interpreting the Constitution involves ANY consideration of 'evolving international norms' is unfit to serve. The document is what it is. Looking to Europe to figure out how to read plain English is a blinking marquee sign a judge ain't reading the Constitution but reading into it. And that makes them unfit, because they aren't upholding their oath to defend the Constitution but making it up as they go along.
NCB, you said it better than I BUMP!
You can raise and hammer at rational arguments and debate that differences that honest men might have. But, that's not the issue here. The corrupt, filfthy dems want power back and they will utilize every dirty tactic they can imagine. Their tricks will get even dirtier as their strength continues to fail and each trick becomes what might be the last desperate effort!
The "Constitution in exile" movement reminds me of the "Dominionist" movement. I hadn't heard of either until the Left started talking about them. This is a little embarrassing since I consider myself to be a reasonably tuned-in member of the VRWC.
Why am I so out of the loop? Why am I not getting the memos?
They told me that JimRob is now officially in charge of memo distribution, and that only $/day donors get the crypto-key. Most of the memos are now distributed in the 'Smokey Back Room' daily threads, but without the key it just looks like more girls-with-guns stuff.
[/sarcasm] {Sorry Jim :-) }
I think you may be confusing the brilliant Appeals Court jurist and former SCOTUS nominee Douglas H. Ginsburg and the sitting Supreme Court justice Ruth Bader Ginsburg. Far, far different philosophies, theirs. The nation is much the poorer for not having D.H. Ginsburg on the Court, although there are likely some here who think he deserved to be nixed for the SCOTUS for his admission that he once smoked pot in college in the sixties.
I daresay that any ordinary American watching this confirmation hearing is not really going to understand or care about the concepts of substantive due process, the Commerce Clause, and other legal esoterica. Liberals had better come up with something more convincing than this if they want to defeat Judge Roberts.
As a child of refugees, I find this phrase veary pleasing on the ears. So would the people of Eastern Europe, many of which operated governments-in-exile, with embassies in Washington, until their got their countries back.
Now we should get OUR republic back. Restore the Constitution in Exlie!
Exactly. The Left are masters of obscuration.
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