The Irrelevant Myth of the “Constitution-in-Exile Movement”

As a follow up to my previous post, I wish to comment briefly on Jeff Rosen’s revival of Cass Sunstein and his invention:  the Constitution-in-Exile Movement that seeks a return to the pre-1937 Supreme Court doctrine.  As my previous post makes clear, the challenge to the Affordable Care Act is in no way based on the return to anything.  It is based solely on refusal to acknowledge an unprecedented, uncabined, unnecessary and dangerous congressional power to compel all Americans to enter into contracts with private companies.

In addition to being irrelevant, however, the so-called Constitution-in-Exile Movement is also a myth.  In 2005, I engaged in a week-long debate with Cass Sunstein about this on the Legal Affairs’ Debate Club.  You can read the whole thing here.  (For others who questioned or rejected this Constitution-in-Exile meme see posts by David Bernstein, Orin Kerr, Stephen Bainbridge, and a recent related piece by Adam White.  You can read the whole Volokh chain here, though it includes a few posts that are not directly on point.)  But here I will confine myself to reproducing my initial reply to Cass’s opening post:

Let 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.

For 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 radical—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.

Cass, you say the “Constitution in Exile” refers “to the Constitution of around 1930, before Roosevelt’s New Deal.” The problem here is that I know of no one (including Judge Ginsburg), whether originalist or not, who entirely agrees with the Supreme Court’s interpretation of the Constitution in 1930 or at some earlier point. To take but one example, many originalists like Justice Scalia entirely reject the Due Process Clause jurisprudence of the pre-1930s Supreme Court. In contrast, many progressive law professors today think that the Supreme Court was correct in 1923 when it used the Due Process Clause to protect the right of parents to send their children to schools that teach foreign languages and in 1925 when it used the Due Process Clause to protect the right of parents to send their children to private schools. Both of these cases remain good law today. From an originalist perspective, I agree with today’s progressives and disagree with Justice Scalia, though I think these cases should have been grounded on the original meaning of the Privileges or Immunities Clause rather than on Due Process. (So even here I contend that the Supreme Court was wrong in the 1920s.) Indeed, I could name many other important examples of disagreements by today’s originalists with the jurisprudence of the Supreme Court before 1937.

And a portion of my final post:

Cass, thank you for the passion and clarity that your most recent remarks have brought to our debate. As you say, we have covered a lot of ground, and for the most part, I think we’ve succeeded in bringing more light than heat to the vitally important issues we’ve discussed. Let me step back a moment before addressing directly the most recent points you’ve made. . . .

Our conversation has demonstrated that the effect of talking about a “Constitution in Exile” is to obscure rather than illuminate the terms of this debate. I fear that this rhetorical shift aims to evade genuine intellectual and political discourse about the merits of originalist jurisprudence by raising a red herring about a fictitious and ill-defined movement or conspiracy to restore the constitutional doctrines of 1930 or 1920. Our interchange this week has been productive, in part, because it has refocused the discussion on the real choice before us: Should judges follow the text of the written Constitution in light of evidence about its original public meaning or should they ignore that meaning to translate their fundamental values or beliefs about how government should be arranged into constitutional law?

Cass, you and I agree on much, but we disagree about the answer to this question. You believe that the importance of reaching certain results—you listed them today—justifies the judicial nullification or updating of whole provisions of the Constitution. (If “updating” does not fairly describe a nonoriginalist approach, then I don’t know what does.) I believe that judges who stick to the original meaning should be nominated by the President and confirmed by the Senate. . . .

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 radicalism!

Rosen writes as if there had been no response to his and Sunstein’s previous attempt to turn a principled commitment to original meaning into an insidious conspiracy to return to pre-1937 Supreme Court doctrine.  But, as I already said, even if he is right about the conspiracy he describes, the challenge to the Affordable Care Act has absolutely nothing to do with “original meaning” and everything to do with extending the power of Congress beyond existing Supreme Court doctrine.

And Jeff Rosen is too smart a guy not to know this.