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The Myth of the "Constitution-in-Exile" Movement
Pejman Yousefzadeh has a nice column on The Myth of the "Constitution-in-Exile" Movement up on Tech Central Station. Here is how it begins:
Last week, I wrote about the conspiracy-mongering regarding the existence and function of the Federalist Society that has become part of the judicial confirmation wars and has emerged as a major talking point against right-of-center judicial nominees. There is another conspiracy-mongering campaign that is designed to serve the same purpose and it has something to do with an alleged "Constitution-in-exile" movement of conservatives and libertarians determined to bring about wholesale changes in the American legal and political structure.
I would add that a major difference between "Restoring the Lost Constitution" and a "Constitution-in-Exile"—as defined by those who are using this term—is that whereas they imagine a desire by conservatives and libertarians to return to a list of pre-1937 results, the real desire is to restore portions of the Constitution that have been systematically redacted in the name of expanded government power at both the state and national levels. Of course, restoring the Commerce Clause, Necessary and Proper Clause, Second Amendment, Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment would certainly yield "results" I think are favorable, these results would hardly comport with some list of pre-1937 doctrines. Ironically, some of the Court's current doctrines are better grounded on the original meaning of these clauses than they are on distorted readings of other clauses. For those who may have missed it at the time, I debated Cass Sunstein on the "Constitution-in-Exile" meme on LegalAffairs.com. There I greatly expand upon the issues I raise in this post, so, if you have any questions, you should probably check out that debate.
Justin Kee (mail):
From the Legal Affairs debate, Mr. Barnett asked, "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?"

I think this question is illustrative of the exclusive or (XOR) nature of the debate. Why should judges be constrained to what is essentially absolutist or relativist positions? The ideological positions ultimately constrain and narrow the possible choices that are made.

For example, maybe the question should read, "Should judges follow the text of the written Constitution in light of its current public meaning or should they ignore that current interpretation to translate their personal values or beliefs about how government should be arranged into constitutional law?

What gets lost in the debate is the Constitution is both an absolute firmament and subject to the varied and changing whims of human beings. The Consitution that I read today speaks to me just as ideally, strongly, resolutely as it may have spoken to one of the founding fathers who assisted in its drafting. Yet it is not the same document, nor could it possibly be the same document, that I know it today. The nature of limiting government changes over time, thus providing us with the benefits and burdens of quasi-legislative agencies such as the EPA. Does the EPA fit into the scaffolding of the federal government as depicted in the Constitution drafted in pre-industrial America? Probably not. Does Congress have the right to use police powers to pluck the marijuana plant off of someone's window sill in the name of commerce? Probably not.

What may be more necessary than a debate about what the Consitution means, is a debate about the greater framework of American society itself, of which the Constitution, and consequently government, is but part.
10.14.2005 3:52am
arbitraryaardvark (mail) (www):
Not too long after the legal affairs debate, the court decided Kelo, and the constitution in exile crowd awoke like a sleeping godzilla. When I wrote in 1994 about restoring state constitutional "free and equal elections" clauses, I pointed to IJ as a model. IJ wants to restore economic liberties under the P&I clause, undoing the slaughterhouse cases. Emerson was a major skirmish for the exiled constitution. Roberts indicates he's at least aware of Emerson, if a little confused about US v Miller. We don't know yet if Miers, or whoever Bush picks next if Miers doesn't get confirmed, are stealth members of the constitution in exile crowd, but it's at least possible. The rallying cry has been "strict construction." This suggest a return to the text, which for some parts of the constitution would be a return from exile. I don't understand the continued hostility toward the term, which is a not-too-far-off-the-mark label for the kind of strict constructionism Bush has been mentioning. For Bush, that might all be code for abortion, since the rules of engagement prevent him from openly discussiong abortion, but there's more to it than the single issue. Recently a hearing was held in Georgia over the new poll taxes. I'm hoping the judge looks to the text and enjoins the tax. The constitution isn't perfect, but it's better than what we've got now.
10.14.2005 3:54am
Challenge:
The Commerce Clause is dead. We may get a Lopez or a Morrison now and then, but if the Court wants to preserve its role as social engineer, they won't step on Congress's toes.

The only conceivable strategy is a very incremental shift in jurisprudence, sustained over many generations, which slowly and surely--and with the necessary approval of the people--restores the limitations on federal power bit by bit.
10.14.2005 4:11am
Challenge:
"I don't understand the continued hostility toward the term, which is a not-too-far-off-the-mark label for the kind of strict constructionism Bush has been mentioning."

Good point, but haven't some of those who have used the term implied it would mean a return to the Lochner Era of substantive economic due process? That seems like a distortion, at least.
10.14.2005 4:15am
Medis:
Cass didn't do a very good job in that debate. But I think it is true that there are a decent number of people who view something like "strict construction" or "originalism" as code for enabling certain "conservative" results by whatever means necessary. On the other hand, many people would not fit that description, which is what Cass did not properly acknowledge.

Indeed, the Miers nomination has really demonstrated that split, as some "judicial conservatives" more or less argue that it doesn't matter what she thinks as long as she votes to overrule Roe, and others argue that it matters why she is voting and whether she can articulate a consistent and appropriate judicial philosophy.
10.14.2005 7:14am
go vols (mail):
A few (honest) questions for some smart folks. I debate these issues with my undergraduates, and am always looking for different ways of looking at this issue.

1) Is it plausible that the Founders themselves did not intend for us to overly abide by their intent, or the public meaning of words in the Constitution when it was written?

2) Is it plausible that the Constitution was not seen by the Founding generation as "the highest statute," but rather a more general framework and set of principles that were somewhat malleable?

3) Does orginalism, taken seriously, make political historians the arbiter of what is Constitutional?

4) What is the orginalist response to the commands of the 8th amendment?

5) When push comes to shove, as Randy admits, originalist judges sometimes vote their ideology rather than their original understanding. While I agree that originalism at least gives us a standard to judge this failure, does originalism (or any philosophy of interpretation) really constrain judges when their ideology demands the opposite decision? In other words, does this debate really matter?

6) Finally, originalism depends on and encourages constitutional change through the amendment process. This is one of its virtures. However, is it possible that our amendment process is simply too arduous for change to be made at the rate that the country "needs"? (I realize that's a pretty vague standard, but I think it's still a fair question).

Sorry about the length of this--thanks for anyone who wants to levy a response.
10.14.2005 9:44am
Daniel Chapman (mail):
Medis: Then you must find it reassuring that so few "legal conservatives" want her confirmed. Does this allay your fears of the "Constitution in Exile" movement?

And no... Dobson doesn't count as a "legal conservative."
10.14.2005 10:03am
Guest2 (mail):
Go Vols -- those are good questions. I hope somebody who knows a lot more about con law than I do responds to them.
10.14.2005 10:28am
Dan Levine (mail):
Because I didn't see this posted anywhere else on this site, I'm adding it here: a petition opposing the Miers nomination sponsored by David Frum.

http://frum.nationalreview.com/petition/
10.14.2005 10:44am
cpugrud:
arbitraryardvark:

Roberts indicates he's at least aware of Emerson, if a little confused about US v Miller.


I'm curious about why you peg Roberts as a little confused about US v Miller? I thought he pegged it pretty well in the confirmation hearing. It's been many years since I read up on Miller so I want to make sure I don't have a misguided recollection.
10.14.2005 10:50am
Steve:
When I hear "Constitution-in-Exile," I think of people who want to return the Commerce Clause to the pre-1937 understanding. And, as Prof. Barnett says, this goes for other provisions of the Constitution as well.

And yet, even though there are certainly lawyers, judges and professors who support some or all of these theories, we repreatedly hear that the Constitution-in-Exile movement is a "myth." In what sense is it a myth? In the sense that no one wants to bring Lochner back? (Actually, I saw an attempt to rehabilitate Lochner just a few months ago.)

It seems like the adherents of the Constitution-in-Exile are constructing a strawman made up of the most outrageous exaggerations of their position imaginable, and then using that strawman as a vehicle to deny that their movement exists at all. But of course there are people who want to return to a prior conception of federalism. It is absurd to deny it.
10.14.2005 11:38am
podraza (mail):
Justin Kee writes

"For example, maybe the question should read, "Should judges follow the text of the written Constitution in light of its current public meaning or should they ignore that current interpretation to translate their personal values or beliefs about how government should be arranged into constitutional law?"

Why do the current and original public meanings differ? My view is that the Supreme Court leads the way in defining the meaning, and that the public follows rather than the other way around. I think this is evidenced by the fact that most of the public doesn't know very much about the constitution at all, certainly not enough to ascribe meaning to any of its specific clauses, most of which they don't know anyway. I know this, I used to be one of them. Prior to law school, I had never read the Constitution, and all I knew of it was that it created 3 branches with checks and balances, that we had "freedom of speech" "freedom of religion" and a "right to guns". That was it! I knew there was more, but had no idea what the more consisted of. And I think I was fairly representative of the typical American. You can probably remember a time when you didn't know much more than this either.

My point is that the "current" and "original" public meanings would be largely the same if not for the Court, because the Court, and not the public, is the driving force behind new and improved interpretations of the constititution. The public has no sense of the document at all, let alone a changing or updating sense. So I think Justin Kee presents a false choice. The current public meaning IS "their personal values or beliefs about how government should be arranged"
10.14.2005 12:02pm
guest34 (mail):
At what point do the insinuations about the Federalist Society fall to the level of insinuations against "card carrying members of the ACLU"?
10.14.2005 12:05pm
SimonD (www):
This seems to me to be similar the efforts of the Roberts camp to deny he had been a member of the Federalist Society. The pertinent question wasn't "are you a member of the Federalist Society, Judge?", it should have been, "if you weren't a member of the Federalist society, why not?"

Likewise, I tend to agree with Steve - if there isn't a "constitution-in-exile" movement, why isn't there? Is that not a fairly accurate description of the goal of those of us dastardly non-mainstream folks who want to put eight more Scalias and Thomases on the Supreme Court - to restore the Constitution to its actual meaning?

I'm sure Sunstein means it as a perjorative. It isn't.
10.14.2005 12:59pm
Harpo:



And you wonder why there is alarm over the anti-New-Deal crowd ?
10.14.2005 1:23pm
Harpo:
The link that was omitted above:

http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm
10.14.2005 1:25pm
SimonD (www):
Harpo-
Lochner was decided on substantive due process grounds. Most of those who would adhere to a "constitution in exile movement" explicitly reject substantive due process, whether used to find non-existent behavioral constitutional rights or non-existent economic constitutional rights. One cannot reject Roe and Lawrence without also rejecting Lochner and Adkins.
10.14.2005 1:36pm
dk35 (mail):
I find it interesting that Randy Barnett thinks it is "ironic" that some of the court's current doctrines are grounded on principles he wishes would return to constitutional jurisprudence.

I think Cass had it right in stating that Randy's own conception of the "original public meaning" of the Constitution is essentially pre-determined by his own libertarian views. For this reason, I go back to politics, and wonder why American libertarians seem to prefer Republican Conservatives over Democratic Moderates. Randy has already written an article complimentary of Justice Kennedy's conception of Liberty. I would dare to predict that over the years, Libertarians may find themselves feeling a closer affinity to Kennedy and Breyer than they do to Scalia and Thomas.
10.14.2005 1:48pm
Daniel Chapman (mail):
Thanks for pointing that link out, Harpo... it was interesting.
10.14.2005 2:10pm
Challenge:
A few (honest) questions for some smart folks. I debate these issues with my undergraduates, and am always looking for different ways of looking at this issue.

1) Is it plausible that the Founders themselves did not intend for us to overly abide by their intent, or the public meaning of words in the Constitution when it was written?

Jefferson in 1823: "On every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

Madison in 1824: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense."

2) Is it plausible that the Constitution was not seen by the Founding generation as "the highest statute," but rather a more general framework and set of principles that were somewhat malleable?

Some saw it that way, Jefferson argued that each branch of government should interpret the Consitution separately and that the people were the ultimate arbiters of their decision-making. But judicial review was predicted and discussed in federalist and anti-federalist papers. I forget the number, but that was actually one of the topics of an anti-federalist paper. Thus, at the time of its ratification, people understood and predicted the power of the Courts under the Constitution, and that the Constitution would be the "supreme law of the land."

3) Does orginalism, taken seriously, make political historians the arbiter of what is Constitutional?

They play a very important part. I think there is, in most cases, already enough history on record to determine most issues, however, originalism is subject to change as revisions in historical information take place.

4) What is the orginalist response to the commands of the 8th amendment?

This is an interesting question. Simply put, is cruel and unusual a fixed concept? I am not bothered by shifting the frame of reference on this one question, but it does the raise the question--if we become more cruel, can it go the other way too? Moreover, the Courts should not use this as an excuse to push their values. Cruel and unusual should be what society, broadly, feels is cruel.

5) When push comes to shove, as Randy admits, originalist judges sometimes vote their ideology rather than their original understanding. While I agree that originalism at least gives us a standard to judge this failure, does originalism (or any philosophy of interpretation) really constrain judges when their ideology demands the opposite decision? In other words, does this debate really matter?

I like to think of originalism in the same context of democracy. As Churchill famously said, "It has been said that democracy is the worst form of government except all the others that have been tried." In other words, it is far from perfect but it's the best we've got in this imperfect world

6) Finally, originalism depends on and encourages constitutional change through the amendment process. This is one of its virtures. However, is it possible that our amendment process is simply too arduous for change to be made at the rate that the country "needs"? (I realize that's a pretty vague standard, but I think it's still a fair question).

Maybe this is so, but if it were that persuasive of a point, if it were that obvious, then couldn't we amend the Constitution to make it easier? Oh, but even that is too hard, eh? I can't find this point to persuave, frankly, because those advocating non-originalist modes of interpretation aren't exactly the most prominent proponents of more democracy. "Needs" really means what elites thinks the country needs, not what the people think they need.
10.14.2005 2:15pm
Shelby (mail):
dk35:
Barnett doesn't think current doctrines are actually grounded on principles he wishes would return; he thinks they would be stronger if they were so grounded. E.g,, privacy rights could be better grounded on the Ninth Amendment than on due process or emanations from penumbras.

I don't think American libertarians prefer Republican Conservatives to Democratic Moderates. However, in the law, conservative views of legal and constituional interpretation (the means) comport better with libertarian views of the proper role and scope of government (the ends). My libertarian ends lead me to ally, for some purposes, with conservative means. While I share many goals with some moderate Democrats (say, legalizing marijuana), their views on the law and the constitution do not lead in any consistent way to a limitation on government's power (say, to criminalize it).
10.14.2005 2:20pm
Challenge:
"privacy rights could be better grounded on the Ninth Amendment than on due process or emanations from penumbras."

Sure, I can see these "privacy rights," abortion and sodomy and contraception, having a place in the Ninth Amendment with respect to the Federal government. But how the hell do you incorporate the Ninth Amendment? Incorporation is a dicey doctrine even without incorporating what is obviously a restatement of federalism principles.
10.14.2005 2:28pm
Shelby (mail):
Steve:
It seems like the adherents of the Constitution-in-Exile are constructing a strawman made up of the most outrageous exaggerations of their position imaginable, and then using that strawman as a vehicle to deny that their movement exists at all. But of course there are people who want to return to a prior conception of federalism. It is absurd to deny it.

I think the point is that there is nothing either large or coherent enough to merit the term "movement". There are individuals who share some goals, and to the extent critics of those goals engage them, that's fine. But it's as if California's political establishment were to start complaining about the secessionists in the "State of Jefferson" and how they really want to be independent, constitutional crises, etc. Sure some would like to carve out a new state; others want to call attention to certain issues; the latter may succeed, the former never will.

Sunstein is the one cerating a straw man; he's invented a "movement" out of a few independent critics of the mainstream approach.
10.14.2005 2:39pm
Shelby (mail):
Challenge:

As I recall, we've had this discussion before. I think it's obvious that the Ninth Amendment is obviously substantive and asserts that there are additional federally-protected rights; you think it's "obviously a restatement of federalism principles" and I can't see how anyone can seriously think that. But clearly many do.

I didn't say anything about any particular rights that various people claim constitute "privacy" under the Constitution. Personally I don't think abortion can be reasonably read in as protected -- though I wish it could be, as I'm pro-choice. Or pro-abortion, if you wish. I do think contraception can be reasonably understood as protected by a federal privacy right.

However, all that is really beside the point. If someone is determined to find a privacy right in the Constitution, it makes more sense to locate it textually in the Ninth Amendment than in other clauses that must be tortured beyond credibility to "contain" it, let alone in nebulous figures of speech. Moreover, Randy was not even talking about privacy rights per se, at least not in the post starting this thread. He was talking at a more general level about how some modern doctrines would have a firmer foundation in "lost" elements of the Constitution; I brought up privacy just as an example.
10.14.2005 2:46pm
Shelby (mail):
Regarding incorporation, I agree it's dicey. But if you're incorporating the Bill of Rights, the Ninth is there and comes along. That makes more sense to me than selective incorporation. Though if I thought the Ninth was just a restatement of federalism principles, maybe I'd agree with you.

Apologies for the clumsy "obvious it is obviously" in my previous comment.
10.14.2005 2:50pm
SimonD (www):
Shelby-
As I recall, we've had this discussion before. I think it's obvious that the Ninth Amendment is obviously substantive and asserts that there are additional federally-protected rights; [Challenge] think[s] it's "obviously a restatement of federalism principles" and I can't see how anyone can seriously think that. But clearly many do.
Or, put another way, I (and a few other people) think it's obvious that the Ninth Amendment is a federalism provision. Shelby believes it's substantive and asserts that there are additional federally-protected rights therein; I can't see how anyone can seriously think that, but clearly many - Shelby and Prof. Barnett to name but two - do.
10.14.2005 2:55pm
SimonD (www):
Challenge:
Incorporation is a dicey doctrine
I don't agree with that; I think incorporation of the first eight amendments is necessary under the P&I clause. My beef is with a) the attempt to incorporate the unincorporable ninth and tenth amendments and b) with the effort to inforporate anything under the due process clause.
10.14.2005 2:58pm
Daniel Chapman (mail):
Just a 2L here, but I'm interested in the debate. How is incorporation of the first 8 amendments "necessary" under the P&I clause? A state can't deny privileges to one person within its jurisdiction that it grants to another, but if the amendments only restrict the federal government, then it's consistent to say that a state could deny those rights equally to all persons within its jurisdiction, isn't it?

Due Process incorporation seems to make more sense once you accept the premise that there is a "substantive" component to the DP clause. (I'm not trying to start a debate on this point... just saying that if you accept it, incorporation makes sense.)
10.14.2005 3:30pm
Shelby (mail):
SimonD:
Or, put another way
Well, yes, obviously.

My beef is with a) the attempt to incorporate the unincorporable ninth and tenth amendments and b) with the effort to inforporate anything under the due process clause.
re (a): I see little point in us restating one anothers' arguments in successive posts. But, if you wish, then yes of course the ninth amendment is incorporable, so it should be incorporated. :-)

re (b): Yup, agreed.
10.14.2005 3:55pm
Shelby (mail):
Daniel:

The 14th Amendment says:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

You say:
A state can't deny privileges to one person within its jurisdiction that it grants to another

But these are not parallel. The prohibition on denying "equal protection of the laws" comes from a distinct clause of the 14th Amendment, separated by a whole 'nother clause as well as by "; nor". In addition to being barred from abridging citizens' privileges and immunities, a state further is barred from denying to any person the equal protection of the laws.

Thus, if the Bill of Rights is among the privileges and immunities enjoyed by US citizens, then a state is forbidden from abridging those rights.
10.14.2005 4:09pm
Harpo:
Lochner was decided on substantive due process grounds. Most of those who would adhere to a "constitution in exile movement" explicitly reject substantive due process

And yet one of Volokhites has made his chops writing adulatory articles and books about the Lochner era.
10.14.2005 4:51pm
Daniel Chapman (mail):
Oops. Thanks, Shelby. P&I doesn't get much play in Con Law.
10.14.2005 5:10pm
Shelby (mail):
P&I got largely written out of the Amendment in the Slaughterhouse cases in the 1870s, IIRC. If you follow the link in my previous post there's an overview at Findlaw.
10.14.2005 5:38pm
Nunzio (mail):
Daniel,

Don't forget the P&I clause of Art. IV, sec. 2., which comes up in cases from time-to-time.
10.14.2005 6:38pm
SimonD (www):
I argue that incorporation is necessary under the P&I clause because I consider the first eight amendments to the Constitution to contain rights - being limitations on the action of government - and that these rights constitute priveleges and immunities of citizens of the United States. Cast in those terms, it becomes obvious why P&I requires incorporation. I had two comments at Prawfsblawg a month or two back that covered this ground. (Additional notes on this topic here, and its implications on the tenth amendment here - I've been meaning to incorporate this material into an essay for about two months, and just haven't had the time).

The ninth and tenth, however, resist incorporation because they are not "liberty-bearing;" they are self-evidently federalism provisions relating to the distribution of powers between the states and the general government. This view - antithetical to Randy Barnett's, I realize - seems irresistable when the bill of rights is contemplated in terms of the time and concerns of the founding generation vis-a-vis the founding of the general government.

This may be completely wrong, but it's how I approach the issue, and I don't think it's especially novel.
10.14.2005 6:46pm
Challenge:
Richard Posner had some interesting comments on his blog regarding incorporation:


There is a lively debate in the comments over the issue of "incorporation"--was the due process clause of the Fourteenth Amendment (ratified in 1868) intended to incorporate the Bill of Rights in the sense of making them applicable to the states? The historical evidence is conflicting, but the proposition seems so implausible on its face that I would require a much clearer showing of the historical understanding to be convinced. Apart from the textual objection--the Bill of Rights includes a due process clause, so what literal sense can it make to say that the due process clause in the Fourteenth Amendment incorporated that clause and everything else in the Bill of Rights? But worse is the assumption that everything that Congress is forbidden by the Bill of Rights to do makes sense to prohibit every state, city, and village to do. That is so mechanical, so insensitive to different responsibilities of different levels of government."

I think that is a very compelling point against incorporation from a pragmatic perspective, but what is the Court to do with the P&I Clause (I utterly reject incorporation through the Due Process Clause), ignore it?



While I am quoting Posner on incorporation, I might as well see what he has to say on the Ninth Amendment for Shelby:


Could the NInth Amendment dissolve the tension between the clause by clause and holistic approaches? It is a chunk of text, after all. It says, "The enumeration in the Constitution, of certain rights, shall no be construed to deny or to disparage others retained by the pople." Could this be a warrant for judges to recognize new rights, both against the federal government and against the states? The extensive literature on this question has had little impact because, with rare exceptions, neither the clause-by-clausers nor the holists are happy with basing decisions on the Ninth Amendment. The amendment does not identify any of the retained rights, or specify a methodology for identifying them. If it gives the courts anything, it gives them a blank check. Neither judges nor their academic critics and defenders want judicial review to operate avowedly free of any external criteria. Even "due process" and "equal protections" seem directive compared to the NInth AMendment--or for that matter to "privilegs and immunities," another constitutional orphan. So, not only is there not enought textual support for unenumerated rights; there is too much.

Overcoming Law, p180.

The originalist positions against "incorporating" either the Ninth and Tenth Amendments are well known territory. Rather than restating the arguments, what do you find unpersuasive about them, Shelby?
10.15.2005 5:11am
dk35 (mail):
Shelby, how do you know that Barnett doesn't think that the right of individuals to privacy with respect to their own bodies aren't grounded in some "lost" principal from the constitution? It seems that is exactly what he is intimating in his article about Kennedy's opinion in Lawrence.
10.15.2005 2:06pm