The Return of Constitution in Exile?

January 25, 2005

by Jeffrey Jamison, Blog Editor
During last week's inauguration, Chief Justice Rehnquist made good on his promise that, despite months of extensive treatment for thyroid cancer, he would administer the oath of office to begin President Bush's second term. While his ability to perform this task admirably might have quelled the doubts of some, most courtwatchers could not help but renew their speculation as to how long the chief justice will be able to uphold the more important duties of his position. As USA Today's Legal Affairs Correspondent Joan Biskupic put it, "[t]he conservative chief justice's appearance at the inauguration is unlikely to tamp down the notion that he might retire soon." At this point, the big question is not whether the chief justice will retire or even when, but rather whom President Bush will select to fill the ensuing vacancy on the Court and if any of the other justices will follow the chief justice's lead during Bush's second term.
An impending vacancy on the court is all the more relevant in light of George Washington Law School Professor and New Republic Legal Affairs Editor Jeffrey Rosen's pre-election warning that, "instead of revisiting Roe v. Wade, a second Bush administration is more likely to focus on judges who will restore the Constitution in Exile." The Constitution in Exile is not an amendment to or article of the Constitution locked away or banished to a tropical island waiting for Nicholas Cage to discover it using clues from the Federalist Papers, but a term first coined in 1995 by Federal Appeals Court Judge and failed Reagan Supreme Court nominee Douglas Ginsburg to describe a conservative reading of the Constitution. Ginsburg, in criticizing the federal courts for granting too much deference to the legislative and executive branches of government, declared:

"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."

Ginsburg's Constitution in Exile is, as Yale Law School Professor Jack Balkin termed it, a "Shadow Constitution" created to remedy the Constitution of any defects the theorist believes exists. University of Maryland Professor Mark Graber adds, "Americans estranged from the official constitutional lawmaking process typical rely on counter-constitutional stories of redemption. Proponents of politically disfavored positions continually produce elaborately detailed and justified constitutions-in-exile. These shadow constitutions lay out the constitutional meanings that would become official should the author or his political faction acquire the power necessary to articulate official constitutional meanings."

Rosen explains that the doctrines Ginsburg believes to have been exiled "were largely abandoned in the 1930s to allow the federal government broad discretion to regulate health, safety, the environment, and the workplace. The most important of the post-New Deal doctrines was an expansive interpretation of Congress's power to regulate interstate commerce, which the Court extended to include any activities that might affect commerce indirectly." This expansion of Congress' power permitted the passage of legislation, which would not have been permissible under the conservative Constitution in Exile, as first described by Judge Ginsburg, such as the Civil Rights Act of 1964, the Social Security Act, and the National Labor Relations Act of 1935.
Though Judge Ginsburg claimed that the Constitution in Exile was merely being kept alive by a "few scholars," according to many observers a conservative "political faction" has been using its power and influence since the 1980's to fill the federal courts, including the Supreme Court, with judges who shared this vision of the Constitution and, during the mid to late 1990's, to block the nominations of judges who did not. Today, this conservative vision of the Constitution appears to have a most powerful advocate in President Bush (and a Republican-controlled Senate). Two days after being re-elected, President Bush reaffirmed his promise to fill any Supreme Court vacancies with, "strict constructionists." It is widely believed, "when President Bush says he wants to appoint strict constructionists, he seems to have in mind justices who subscribe to the 'Constitution in exile' movement...who are closer to Justice Scalia than to Justice O'Connor." California Supreme Court Justice Janice Rodgers Brown, President Bush's nominee to U.S. Circuit Court of Appeals for the District of Columbia and often mentioned as a possible Supreme Court nominee, denounced the decisions of the Supreme Court since 1937 that created the conservative Constitution in Exile as a "disaster" marking "the triumph of our socialist revolution."
The return of the conservative Constitution in Exile, Rosen argues, 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 conservative] justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response." Adam Cohen reminds us, "In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional."
These predictions are based less on speculation and than on the Supreme Court's record over the last ten years. Since Judge Ginsburg introduced the term "Constitution in Exile" into the constitutional lexicon, the Rehnquist court has struck down in whole or part more than 33 federal laws. In contrast, during its first 70 years, the Court invalidated only two acts of congress. People for the American Way maintains, "[u]sing what amounts to a judicial veto, the [Rehnquist] Court has been overturning acts of Congress at an accelerated rate 6.5 times faster than during the first 200 years [of the constitution]." Thomas Keck, Assistant Professor of Political Science in the Maxwell School of Citizenship and Public Affairs at Syracuse University, maintains that this unprecedented rate has made the Rehnquist Court "the most activist Supreme Court in history." The Rehnquist Court has invalidated popular bi-partisan acts of congress including the Violence Against Women Act, the Gun-Free School Zones Act, the Brady Bill, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In February of 2000, the libertarian CATO institute declared, "They're Back: The Rehnquist Court is returning to constitutional principles that the New Deal Court had simply pushed aside."
University of Chicago Law School Professor Cass Sunstein explains that Rehnquist promulgated this conservative agenda well before 1995; "Rehnquist has had a clear agenda for constitutional interpretation: to renew limits on Congress's power under the commerce clause, to increase the protection of private property, to strike down affirmative action programs, to scale back the use of the Constitution to protect those accused of crime, to reduce the protection of privacy, to stop the use of the equal protection clause to assist members of disadvantaged groups (disabled people, the elderly, illegitimate children, women), and much more." Keck suggests that, "[t]he current Court's federalism opinions have [been] built to a significant degree on dissenting opinions by Justice Rehnquist in the 1970s."
It wasn't until 1995, in U.S. v. Lopez, that Chief Justice Rehnquist and the rest of the so-called "Federalism Five" (Justices Scalia, Thomas, Kennedy, and O'Connor) began what some have argued is an effort to reinstate the conservative Constitution in Exile. In the majority opinion (5-4) written by Rehnquist, the Court declared the Gun Free School Zones Act of 1990 "invalid as beyond Congress' power under the Commerce Clause." Simon Lazarus of the National Senior Citizen's Law Center has explained that Justice Thomas' concurring opinion summed up the view of the Court that "if interstate 'commerce' narrowly connoted 'trade' between the states in 1789, the Supreme Court took a 'wrong turn' in 1937 when it upheld broad New Deal laws on the ground that 'agriculture' and 'manufacturing' were part of commerce." New York Times Supreme Court reporter Linda Greenhouse declared that the Lopez case signaled that "[t]he 'Constitution in exile' was on the way home, and judicial review was the horse it was riding."
David Strauss argues that the Court's effort to return to the conservative Constitution in Exile is a form of judicial activism aimed at "eviscerat[ing] Congress's power over important areas of national life." Strauss writes, "[t]he theory of the Constitution in exile is arrogant and unfounded. It would override decades of precedent, and invalidate important and widely supported legislation, on the basis of some Republican lawyers' and judges' claims to unique access to what the framers of the Constitution believed." The Conservative Judge Learned Hand argued long against this form judicial activism, proclaiming, "[f]or myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." As Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit has explained, "the federal judiciary best fulfills its role within the American constitutional framework not when it tries to do it all, but when it acts within the confines of its prescribed role. This involves leaving the task of legislating to Congress and State and local legislatures, and leaving the task of constitution-making to the amending procedures established by Article V."
If, as Professor Strauss argues, the effort to bring about the return of the conservative Constitution in Exile is "arrogant" and "unfounded," what might be an appropriate standard for judicial review of the constitutionality of federal statutes? No one suggests that the Supreme Court abdicate its role in reviewing the constitutionality of federal legislation, but, rather, as many commentators maintain, that the scope of the review should be limited. In U.S. v Carolene Products Co., the Supreme Court established that legislative review should conform to a "narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Thus, it is legislation that impacts our liberties under the Bill of Rights, such as the Federal Sentencing Guidelines (6th Amendment) and the Communications Decency Act (1st Amendment), that Court should be concerned with and empowered to review and not, as Justice Black wrote in his dissent in Griswold v. Connecticut, with, "legislation offensive to their 'personal preferences.'"
Recently, the Rehnquist court shifted in a way that causes some observers to believe that the return of the Constitution in Exile may be stalling, at least for as long as the composition of the Court remains unchanged. In Nevada v. Hibbs (2003), Justices Rehnquist and O'Connor both broke ranks with the other members of "Federalism Five" to uphold the Family and Medical Leave Act. A year later, in Tennessee v. Lane, it was Justice O'Connor who provided the deciding vote to uphold Americans with Disabilities Act. The hope of stalling the return of the Constitution in Exile may, however, be fleeting. Justices O'Connor and Rehnquist are, along with Justice Stevens (who is decidedly skeptical about the conservative Constitution in Exile), considered the justices most likely to retire during President Bush's second term.
Many observers predict that Justice Rehnquist's retirement would likely to do little to change the philosophical make-up of the court, as President Bush likely would nominate a successor with a similar conservative judicial philosophy. Rosen warns, however, that the retirement of O'Connor, Kennedy or one of the "liberal" justices, coupled with President Bush's nomination of "a true believer in the Constitution in Exile," would send the federalism revolution "into overdrive." Courtwatcher Edward Lazurus observes, that Justice Stevens shows no signs of slowing down and, even if he were to retire before the end of Bush's second term, Justices O'Connor and Kennedy, who often have "have put the brakes on radical change, ...would still have the power to prevent significant departures from the jurisprudential status quo that they have forged simply by aligning themselves in key cases with the remaining three more liberal justices." But Lazurus cautions that "all bets are off if O'Connor, now in her mid-70s, decides to retire." In 2003, O'Connor was in the majority in 76 of 81 cases decided by the Court and perhaps, more importantly, was in the majority of all cases decided by a 5-4 majority. O'Connor has, according to Jeffrey Rosen, "extended the most popular liberal activist decisions of the Warren era while also endorsing conservative judicial activism as public support for the welfare state wanes." An even more dire warning was offered by Ralph Neas, President of People for the American Way, who declared, "One or two more Scalias and Thomases and we'll have over 100 Supreme Court precedents overturned. The radical right can accomplish in a four-year period what they've tried to accomplish for the last 40 years."
Cass Sunstein warns that, if President Bush is able to make several appointments to the Supreme Court, we would likely see the Court strike down campaign-finance reform, parts of the Endangered Species Act and the Clean Water Act, commercial speech would be elevated "to the same status as political speech-thus forbidding controls on commercials by tobacco companies," and "[i]t would probably limit congressional efforts to protect disabled people, women, and the elderly from various forms of discrimination. More radically, it might interpret the Second Amendment so as to reduce the power of Congress and the states to enact gun-control legislation." Tom Teepen of Cox News Service warns, "Hot-button issues such as abortion and affirmative action will seem like small stuff if the president is indulged in his worst instincts and can install a throwback judiciary that would broadly reverse three generations' worth of gains in civil liberties, individual rights and common-interest legislation." Under these scenarios, the conservative Constitution in Exile would return, with a vengeance. In many ways, this judicial agenda mirrors the current conservative legislative agenda. Through the courts, conservatives could, as Adam Cohen suggested, "achieve their anti-New Deal agenda through judicial activism on the right." Taken to an extreme, the full adoption of this Constitution in Exile by the Supreme Court would mean that conservatives would not need to worry about privatizing Social Security because the program Social Security could be held unconstituional, and thus cease to exist in anything like it's current form.
The slow, incremental return of the conservative Constitution from its supposed exile over the past ten years by the Rehnquist court and the strong likelihood that President Bush will continue to nominate to the federal courts those sympathetic to this constitutional interpretation, has led some to wonder if the progressive movement should explore the creation of a Constitution in Exile of its own. Mark Graber argues otherwise, "Progressive constitutional energy at present is not best spent endlessly refining and elaborating a constitution-in-exile. Little chance exists that the present Supreme Court majority will move in the directions suggested by progressive constitutional theory." Instead, Sunstein argues, progressives should, "begin with a sustained objection by those who understand the problem. The nation is in the midst of a period of right-wing judicial activism, more extreme than any such period since the New Deal itself. A great deal has already happened, but much worse may be on the way unless far more people--moderate and even conservative Republicans, as well as Democrats--come to see what the nation stands to lose."