Will the real Constitution in Exile please stand up?
posted by Kaimipono D. Wenger
Regular blawgosphere readers are probably familiar with the arguments between Cass Sunstein, Jeffrey Rosen, and others (on the one side) and Randy Barnett, David Bernstein, and others (on the other side) over the existence and impact of something called the Constitution in Exile movement.
For the uninitiated, an extremely simplified version of the debate thus far looks like this: Sunstein alleged that right-wing activists (his term) are interested in reviving the Constitution in Exile; he then made substantive critiques of Barnett, Richard Epstein, and others, implying that they were part of the Constitution in Exile movement. Barnett responded, arguing that the Constitution in Exile was a straw man, and that neither he nor any of his colleagues used the term; he then made the broader argument that there was no “movement” because of the differences among conservative academics.
The argument has played out so far in a number of places — see, e.g., Volokh Conspiracy posts in this chain; Debate Club here; see also Co-Op notes from AALS session with Sunstein and Barnett; see generally Sunstein, Radicals in Robes, and Barnett, Restoring the Lost Constitution.
A minor, but potentially interesting new wrinkle comes with the publication earlier this year of (New Jersey Superior Court) Judge and Fox News analyst Andrew Napolitano’s book, The Constitution in Exile. Napolitano argues for limits on federal power, increased state autonomy, and return to an earlier vision of the Constitution.
How does this change the equation? Well, as noted above, Sunstein’s original assertion was that “right wing activists” seek to “restore the constitution in exile.” Barnett made at least two counter-arguments. The first was broadly descriptive — nobody actually believes in a constitution in exile. The second was more narrow — it’s wrong to classify Barnett himself (or Epstein, or Bernstein, or others) as believers in a constitution in exile.
The publication of Napolitano’s book absolutely proves the weaker of Sunstein’s assertions. Are there “right wing activists” who believe in a Constitution in Exile? Yes, there are.
Does this undercut Barnett’s other arguments? Probably not. All things considered, a publication from a single state judge is probably not evidence of a broad movement; it is certainly not evidence of a Constitution-in-Exile movement espoused by legal scholars such as Barnett and Epstein. (As one Volokh commenter states sarcastically, “If a Constiutional scholar of that caliber wrote a book with that title, then it must be true!” See also Eric Muller’s earlier Co-Op guest post — citing Napolitano by name — noting that legal academics typically don’t pay much attention to popular-press books.)
Interestingly, though, the book has drawn positive reviews from a number of popular conservative commentators — Rush Limbaugh, Sean Hannity, Bill O’Reilly, and so forth. So to some degree, some of Sunstein’s original claims — that there is ongoing discussion among right wing activists about the Constitution in Exile — are being made accurate, even if not exactly in the manner he probably originally intended them.
October 1, 2006 at 2:58 pm
Posted in: Constitutional Law
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Responses (4)
John Q. Lawprof - October 2, 2006 at 2:55 pm
The more plausible explanation is that the term “Constitution in Exile” has gotten a lot of play in the media thanks to Sunstein, et al., so even if no one thought it such terms before, it pays now to write a book of that title to take advantage of the free publicity.
kolton - October 19, 2006 at 11:52 am
Do students have the same right as a adult? Or are we not citzens? Beacaue if we are forced to go to school, Then are’nt we slaves? Plus if we are forced somthing that would’nt be a citzen. If we are not citzens than we are slaves?
kolton - October 19, 2006 at 11:56 am
Oh yea please anyone who is going to ansewer my qustion’s than, please do not send to my email adderss my send to my myspace.
i will be ur end is my name i have a picture of me at buger-king.
I know my name for myspace is not profesinal.
But i will change it after you send me a message.
So i ask you please if you can ansewer my qustion. I will be sending a alternet letter to our governer.
bored - November 18, 2006 at 10:20 pm
The funniest thing about all the “Constitution-in-exile” talk is that it has become a debate over the existence of an organized movement rather than on the substance of what Sunstein alleges. For Barnett to counter with the “straw man” argument is particularly lame, considering his book calls for the revival of a “lost constitution.” What is the problem with Sunstein defining a movement that he perceives? It is much easier to discuss the very real desire among many judges and legal scholars to undue the New Deal’s commerce clause expansion, reinstate economic substantive due process, and restore the efficacy of the non-delegation doctrine if we can attach a name to all this. To be sure, Barnett’s book is not written specifically to these ends (or these ends alone), but to deny that there are people advocating these view because they don’t refer to themselves as members of the Constitution-in-exile movement is to side-step the actual debate, which, in my opinion, should be whether these changes to today’s constitutional jurisprudence are a good idea. Anybody care to weigh in on that?
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