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False Exile

What's really behind the left's worry about John Roberts and the "Constitution in Exile."

10:00 AM, Jul 25, 2005 • By JOHN HINDERAKER
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PRESIDENT BUSH'S NOMINATION of John Roberts to the Supreme Court has brought into public view a hitherto-obscure movement, or conspiracy; or maybe just an obscure hoax: the "Constitution in Exile" movement. The concern that Roberts might be part of this shadowy group was voiced most explicitly by the editorial board of the Minneapolis Star Tribune:

If [Roberts] won't answer, if he falls into word games and other avoidances, or if he indicates he subscribes to the beliefs of Scalia, Thomas and other supporters of the so-called "Constitution in exile"--meaning the Constitution as it was interpreted prior to the New Deal--then he should not be confirmed.

The Star Tribune's concern is not unique; Googling "Roberts 'Constitution in Exile'" currently generates more than 400 references.

If you've never heard of the "Constitution in Exile," you're not alone. The catchy phrase originated in a 1995 book review by Judge Douglas Ginsburg, which was published in the journal Regulation:

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.

In the ten years that have since elapsed, it is not clear that any conservative has ever used the phrase "Constitution in Exile" in any published writing. But fear of this fictitious "movement" caught on quickly on the left. Liberals like Cass Sunstein have railed against the "Exiles." In April of this year, liberal fears of a Constitutional restoration broke into the mainstream with an article by Jeffrey Rosen in the New York Times Magazine, titled "The Unregulated Offensive." Rosen articulated the central tenet of what he repeatedly referred to as the "Constitution in Exile movement": the "thesis that many of the laws underpinning the modern welfare state are unconstitutional." Rosen warned that if the "movement" prevails, federal regulations in areas as diverse as securities regulation and environmental protection may be struck down. And he explicitly linked the alleged movement's resurgence to President Bush's impending Supreme Court nominations, quoting Chris DeMuth of the American Enterprise Institute:

"I think the president and his top staff have shown really good taste in their court of appeals nominations,'' DeMuth told me during a visit to the institute, "and when the Supreme Court opening comes up, they will be very strongly inclined to nominate people from our side."

DeMuth was especially enthusiastic about the possible candidacy of Michael W. McConnell, a federal appellate judge in Denver and a former University of Chicago law professor who worked with DeMuth at the Office of Management and Budget in the Reagan administration. . . . Most of the other names on Bush's short list have similar qualities: J. Michael Luttig, a federal appellate judge in Virginia, is a vigorous proponent of the view that some federal environmental laws exceed Congress's powers to regulate interstate commerce; John Roberts, a federal judge in Washington, has also questioned whether some applications of the Endangered Species Act exceed Congress's regulatory powers.

Put briefly, the liberal fear is that conservative judges may resurrect decisions such as Lochner v. New York, decided by the Supreme Court in 1905, which invalidated on "substantive due process" grounds a New York statute which limited the number of hours that could be worked by bakers. The Court held that the law unconstitutionally infringed "the general right to make a contract in relation to his business [which] is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution." (198 U.S. at 52) The return of this pre-New Deal jurisprudence is the liberals' ultimate nightmare when they contemplate a conservative Supreme Court. The Star Tribune expressed it this way: