April 18, 2005

Jeffrey Rosen on "The Constitution in Exile"


"Imagine that the interpretation of the Constitution was frozen in 1937. Imagine a country in which Social Security, job safety laws and environmental protections were unconstitutional. Imagine judges longing for that. Imagine one of them as the next Supreme Court nominee." (emphasis in original).

So begins "The Unregulated Offensive," published in yesterday's New York Times Magazine by Jeffrey Rosen, Professor of Law at George Washington University School of Law. In the article, Professor Rosen traces the rise of the "Constitution in Exile" movement, which seeks to return constitutional law to what it believes was a pre-New Deal Golden Age of limited government. Rosen traces the rise of the movement from the writings of a few conservative scholars in the 1980s, through the growth of a network of think tanks and anti-regulatory "public interest" groups to the present, as it stands poised to place one or more of its adherents on the Supreme Court.
The goal of the Constitution in Exile movement, according to one of its leaders quoted by Rosen, is nothing less than to "withdraw judicial support for the entire modern welfare state." Doing so, according to Professor Cass Sunstein of the University of Chicago Law School, would lead to courts declaring many contemporary environmental, health and safety laws unconstitutional and largely deregulate the American economy. Sunstein adds that "the Social Security Act would not only be under political but also constitutional stress."
Rosen makes clear that supporters of the Constitution in Exile are under no illusion that this radical agenda is either popular with the public or supported by the past 70 years of Supreme Court precedent. They are frank about their methods: "Judicial activism will have to be employed," according to Michael Greve, a scholar at the American Enterprise Institute (emphasis added). Greve continues: "I think the judicial appointments are what matters most of all." Rosen quotes Greve as enthusiastically praising two of President Bush's nominees to the federal courts of appeal, William Pryor of the 11th Circuit ("Pryor is the key to this puzzle; there's nobody like him. I think he's sensational. He gets almost all of it.") and Michael McConnell of the 10th Circuit (who Greve says will "give you a vision of federalism that looks like the federalism we once had...."). Other potential Bush Supreme Court nominees Rosen discusses as potential adherents of the Constitution in Exile include Janice Rogers Brown (who called 1937, the year in which the Supreme Court stopped striking down New Deal legislation on constitutional grounds "the triumph of our socialist revolution."), J. Michael Luttig and John Roberts.
You can learn more about the Constitution in Exile by reading "The Return of the Constitution in Exile?" a comprehensive analysis by Jeffrey Jamison, a law student at Harvard and one of the editors of ACSBlog.