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."Today David Bernstein adds:
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.
Im sure the legal blogosphere will be abuzz with discussions of Jeff Rosens N.Y. Times magazine piece on the purported "Constitution in Exile" movement....Ginsburg's coinage, regardless of its modest provenance, appears in a paragraph in which he neatly encapsulates what many conservatives and libertarians have said on countless occasions about the subversion of original meaning. Here's the paragraph (source):
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 write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."
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.That presages Ginsburg's 2003 speech, entitled "On Constitutionalism," in which he elaborates on that paragraph, without using the phrase "Constitution in exile."
In any event, dedication to the real Constitution of original meaning -- the "Constitution in exile" -- seems to be alive and well in The Federalist Society, in a few law schools, and in many places on the web, notably at The Volokh Conspiracy. If that isn't a movement, it has all the makings of one.