Constitution in exile
Encyclopedia
- This article does not refer to The Constitution in Exile, a book by Judge Andrew NapolitanoAndrew NapolitanoAndrew Paolo Napolitano is a former New Jersey Superior Court Judge and now a political and legal analyst for Fox News Channel. Napolitano started on the channel in 1998, and currently serves as the network's senior judicial analyst, commenting on legal news and trials...
.
Constitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
allegedly not having been enforced according to their "original intent" or "original meaning". Some originalists might argue, for example, that the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
and Necessary and Proper Clause do not authorize economic legislation dating all the way back to the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
.
Origins and meaning
According to an article by Legal Affairs Editor Jeffrey RosenJeffrey Rosen
Jeffrey Rosen is an American academic and commentator on legal affairs. Legal historian David Garrow has called him "the nation's most widely read and influential legal commentator."-Biography:...
in The New Republic
The New Republic
The magazine has also published two articles concerning income inequality, largely criticizing conservative economists for their attempts to deny the existence or negative effect increasing income inequality is having on the United States...
, "The phrase comes from a 1995 article by Douglas Ginsburg, a federal appeals court
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
judge in Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, whom Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
unsuccessfully nominated to the Supreme Court after the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
rejected Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
."http://www.tnr.com/doc.mhtml?pt=Sms6EeBveHgkYCWg9U4MRw
According to the same article, reinstating provisions "exiled" from the Constitution would mean "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
. These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
, and civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
, making it difficult for the federal government" to act on these issues. Rosen considers this to be a form of judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
, though its proponents would argue that it was merely reversing decades of accumulated activism.
Rosen's argument
Rosen argues that one of the most important provisions of the Constitution in Exile is limitations on the interstate commerce clause, which were undermined by the Supreme Court's "expansive interpretation of Congress's power to regulate interstate commerce... extended to include any activities that might affect commerce indirectly" during the New DealNew Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
. "In 1995, however, the Supreme Court began taking tentative steps toward resurrecting some of the constitutional limitations on the regulatory state that had been dormant since the 1930s. In controversial 5-4 rulings (primarily, United States v. Lopez
United States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...
and United States v. Morrison
United States v. Morrison
United States v. Morrison, is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.-...
), the Court limited Congress's power to ban guns in the area surrounding schools, for example, and to punish violence against women, holding that the laws did not involve commercial activities and therefore couldn't be justified by Congress's authority to regulate interstate commerce." (A later decision in Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
, in which Justices Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
and Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
- integral parts of the Lopez and Morrison majorities - joined, seemed to show the limits of the court's willingness to curtail commerce clause power.)
Most judges who are identified with the Constitution in Exile call themselves strict constructionists
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
or originalists
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
.
Controversy surrounding the term
Law professors David Bernstein
David Bernstein (law professor)
David E. Bernstein is Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995....
and Orin Kerr
Orin Kerr
Orin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
, among others, have criticized Rosen and Cass Sunstein
Cass Sunstein
Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
, another opponent of the "Constitution in Exile," for using the term, which is now used almost exclusively as a pejorative
Pejorative
Pejoratives , including name slurs, are words or grammatical forms that connote negativity and express contempt or distaste. A term can be regarded as pejorative in some social groups but not in others, e.g., hacker is a term used for computer criminals as well as quick and clever computer experts...
. Kerr writes: "there is no evidence that a conservative has used the phrase 'Constitution in Exile' outside of a single reference in a 1995 book review." Bernstein writes that Sunstein and Rosen have invented a nonexistent cabal as a straw man
Straw man
A straw man is a component of an argument and is an informal fallacy based on misrepresentation of an opponent's position, twisting his words or by means of [false] assumptions...
:
I, as someone who knows probably just about every libertarian and most Federalist SocietyFederalist SocietyThe Federalist Society for Law and Public Policy Studies, most frequently called simply the Federalist Society, is an organization of conservatives seeking reform of the current American legal system in accordance with a textualist and/or originalist interpretation of the U.S. Constitution...
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 [...] [T]he 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.
Similarly, The Weekly Standard
The Weekly Standard
The Weekly Standard is an American neoconservative opinion magazine published 48 times per year. Its founding publisher, News Corporation, debuted the title September 18, 1995. Currently edited by founder William Kristol and Fred Barnes, the Standard has been described as a "redoubt of...
has noted that:
For years, liberal legal commentators have been fond of accusing conservatives of pining for the restoration of the "Constitution in Exile" — a return to pre-FDR conservative constitutional jurisprudence that would (by their telling) roll back the New DealNew DealThe New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
, the Great SocietyGreat SocietyThe Great Society was a set of domestic programs in the United States promoted by President Lyndon B. Johnson and fellow Democrats in Congress in the 1960s. Two main goals of the Great Society social reforms were the elimination of poverty and racial injustice...
, and more or less every other major liberal legislative triumph of the twentieth century. But while Jeffrey Rosen, Linda GreenhouseLinda GreenhouseLinda Greenhouse is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School...
, Jeffrey ToobinJeffrey ToobinJeffrey Ross Toobin is an American lawyer, author, and legal analyst for CNN and The New Yorker.-Early life and education:...
, Cass SunsteinCass SunsteinCass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
, and others often invoked phrase, few if any conservative legal thinkers have actually employed the phrase affirmatively, other than one federal judge in a magazine article fifteen years ago.
Sunstein's view
Sunstein has responded that Randy BarnettRandy Barnett
Randy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
's book, Restoring the Lost Constitution
Restoring the Lost Constitution
Restoring the Lost Constitution: The Presumption of Liberty is a 2003 book about the United States Constitution written by Randy Barnett, a professor of law at the Georgetown University Law Center. In the book, Barnett outlines his theory of constitutional legitimacy, interpretation and construction...
, Richard Epstein's constitutional work, and opinions expressed by Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
and Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
all support "restoring the lost constitution, or what Judge Ginsburg calls the Constitution in Exile," so his use of the term is justified.
See also
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Legal formalismLegal formalismLegal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
- Living ConstitutionLiving ConstitutionThe Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Strict constructionismStrict constructionismIn the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
- Lochner eraLochner eraThe Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...