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 — 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 Exile.”

  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 claims.

  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 — beyond the initial book review, which I just read today — that conservatives or libertarians have used this phrase to describe their goals.

  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 — “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.

  I have 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.

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