Rosen on the "Constitution in Exile":
volokh.com
I’m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen’s N.Y. Times magazine piece on the purported "Constitution in Exile" movement.
Jeff was a Yale Law classmate of mine, and I'm generally a great admirer of his work. But I do want to take issue with a couple of things in this particular piece.
First, I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to mutter about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."
Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article. I acknowledge that some Federalist types, including me, do believe that various pre-New Deal constitutional doctrines should be revived. But let's be clear on the fact that the idea that there is some organized "Constitution in Exile movement," that is in fact using that phrase is pure fiction. Why does this matter? Because the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves. Would I, for example, be considered a member of the "Constitution in Exile movement" even though I don't buy Epstein's theory of the Takings Clause, and think Lochner was probably wrongly decided?
Second, Jeff refers to Cass Sunstein as someone who "describes himself as a moderate." Come on, Jeff. Sunstein is, in American political terms, an ultra-liberal, his weak attempt at feigning moderation to give himself more credibility in critiquing libertarians notwithstanding. His strong ideological leftism, is, indeed, why he’s helped perpetuate the "Constitution in Exile movement" myth. Why cooperate with Cass’s whitewashing of his political views? Jeff is no legal neophyte, and is perfectly well aware that Sunstein is no moderate, at least once one steps outside the bizzaro world of academia.
Finally, Jeff, while not explicitly critical of libertarian constitutional theory, does seem to be implicitly raising the alarm regarding potential future conservative or libertarian judicial activism. I hope it's not impolite to mention that this alarm-raising comes with a touch of irony from someone whose first published law review work defended the proposition that the Ninth Amendment protects judicially enforceable natural rights, and, moreover, that courts should refuse to enforce a constitutional amendment banning flag-burning, because such an amendment would itself be an unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991).
UPDATE: Oh, and it should go without saying that none of the individuals Rosen identifies as pushing the purported "Constitution in Exile movement"--Greve, Epstein, Barnett, Bolick, etc.--have any political power. The odds that Bush will nominate a libertarian type to the Supreme Court (unless its Janice Brown for other reasons) are slim to none. He may nominate someone like Luttig who believes in some limitations on federal power, but you would be hard pressed to find any originalist who believes that the current scope of federal power complies with the original meaning of the Constitution. Even Bork, who certainly has little in common with Greve et al., has always acknowledged this point, though he's argued that it's too late to do anything about it, a rather odd (and politically convenient) perspective for an originalist, and one that's always been controversial even among his acolytes. And if the Bush people were really intent on pushing a constitutional revolution, wouldn't they have followed in Reagan's footsteps and appointed a prodigious fraction of conservative and libertarian legal academics to the federal bench?
Correcting Rosen's History:
The Volokh Conspiracy
volokh.com
Saturday, April 16, 2005
[David Bernstein, April 16, 2005 at 11:35pm
Jeff Rosen is a learned guy who has written some rather perceptive things about the so-called Lochner era in his law review scholarhip. See 66 Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history. To wit:
Rosen: All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties.
O.K., besides the fact that there is no "Constitution in Exile movement", there is nothing blatantly inaccurate about the above; the Republicans did dominate the United States from 1896 to the Roaring Twenties. But Jeff is clearly implying that there was some correlation between libertarian interpretation of the Constitution and Republican politics, in a way that would both draw parallels to today, but also suggest that such views have always been tied up in partisanship. In fact, however, some of the most libertarian Justices of the period Jeff refers to–Melville Fuller (Cleveland), Rufus Peckham (Cleveland), and James McReynolds (Wilson) were appointed by Democrats. Some of the most statist Justices–Holmes (Roosevelt), Stone (Coolidge), Roberts (Hoover), and, at the tail end, Cardozo (Hoover) were appointed by Republicans. Constitutional interpretation simply wasn’t a partisan (though it was a political) issue, and with few exceptions the Justices of the period from both parties accepted constitutional limitations on both federal and state regulatory power that none of today's Justices would countenance.
Rosen: Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.
There is a wealth of scholarship, starting with historian Charles Warren in the 1910s and 20s, through recent work by myself and others (and Cushman, 83 Va. L. Rev. 559; Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. Am. Hist. 63 (1985)), showing that the Supreme Court, especially through 1923, rarely invalidated economic regulations. The Court, and lower courts, allowed restrictions on free enterprise ranging from bans on options trading to Sabbath laws to child labor laws (at the state level) to a wide range of draconian professional licensing laws to many, many more types of regulations. Between 1923 to 1934, the Supreme Court grew somewhat more aggressive about invalidating regulatory laws, but, at the same time, (1) state courts virtually abdicated the field; and (2) even the Supreme Court upheld some rather unprecedented and draconian regulations, such as the Railway Labor Act (unanimous opinion at 281 U.S. 548).
Rosen: The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," referring to the celebrated Social Darwinist and advocate of laissez-faire economics.
Spencer has been unfairly tarred as a "Social Darwinist", and Holmes himself is far more accurately depicted as a Social Darwinist, but I won’t go into that here. I will say that first, Social Statics is a book by Spencer, something that for some reason most constitutional scholars don’t know. The book advocated the libertarian "law of equal freedom," which Holmes analogized to the sic utere tuo ut alienum non laedes principle in law (use your property in such a way so that it does not hurt that of others). Holmes pointed out that the sic utero principle had never been adopted by the Court as part of the U.S. Constitution (and indeed, the Court, Holmes noted, upheld many types of economic regulation), so he could not understand why maximum hours laws would be unconstitutional. Note that Holmes was neither accusing his brethren of being Social Darwinists, or of adopting a laissez-faire view of the Constitution; indeed, on the latter point, he was pointing out that Lochner was inconsistent the with the Court's general indifference or hostility to laissez-faire as a constitutional principle. By stating that the Fourteenth Amendment did not enact Social Statics, Holmes was simply stating that the Fourteenth Amendment did not require the states to adopt a radical libertarian system of government. (Relatedly, Spencer was not simply an advocate of laissez-faire in the economic realm, but a radical libertarian more generally, who, among other things, was an early and passionate supporter of women's rights.)
Rosen: Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act.
You can read the NIRA case here, and I challenge you to find any hint of laissez-faire economics in the opinion. Indeed, the unconstitutionality of the fascistic NIRA was not even controversial on the Court–all nine Justices, including Brandeis, Cardozo, Stone, and Roberts, thought the law clearly exceeded federal power. More generally, Jeff should know better than to mix and match the Lochner line of due process cases and the scope of federal power cases. The two lines of cases happened to both be overturned around the same time during the New Deal, but they were in fact, separate lines of cases, with separate rationales, and "inconsistent" results (e.g., the Supreme Court upheld state child labor laws challenged under the due process clause, but invalidated federal child labor laws as beyond the scope of federal power).
I recognize that the history Jeff recounts is not the main point of his article. However, if one is going to write about those who want to restore pre-New Deal doctrines, it's important to know, as libertarian academics who support full or partial "restoration" generally do, what those doctrines actually were and what effect they had. Relying on Progressive mythology in critiquing the views of libertarians who know better simply isn't helpful. |
