Wednesday, December 29, 2004

More on Sunstein

I didn't notice this before, but the same Sunstein review I discussed earlier stretches the truth in two additional ways:
For many admirers of Scalia and Thomas, the real target now is Franklin Delano Roosevelt, not Earl Warren. There is increasing talk of restoring what is being called the Constitution in Exile--the Constitution as of 1932, Herbert Hoover's Constitution, before Roosevelt's New Deal. This was a period in which the Supreme Court's understanding of the Constitution, obviously rooted in the justices' political convictions, jeopardized maximum-hour legislation, minimum-wage legislation, the National Labor Relations Act, the Fair Labor Standards Act, and the Social Security Act--and would certainly have forbidden the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Age Discrimination in Employment Act. This was also a period in which racial segregation was constitutionally fine, and in which it would have been ludicrous to say that the Constitution banned sex discrimination or protected a right to sexual and reproductive privacy.

The Bush administration does not lack sympathy for the Constitution in Exile, and President Bush has nominated judges who appear to believe that it should be restored.
Note the implication that Bush has nominated judges who "appear to believe" that they should "restore[]" a "period in which racial segregation was constitutionally fine."

Then, Sunstein claims that "[t]here is increasing talk of restoring what is being called the Constitution in Exile." Orin Kerr asks the obvious question: Says who? Who has ever used the term "Constitution in Exile"? And where are the "increasing" numbers of conservatives using that term?

Nowhere. As Kerr points out, exactly one conservative-leaning person -- D.C. Circuit judge Douglas Ginsburg -- used the phrase exactly once in a 1995 book review, and Kerr can't find any evidence on Google or Westlaw that any conservative/libertarian has argued for the "Constitution in Exile" ever since. For what it's worth, I've never heard of anyone arguing that we should restore the "Constitution in Exile," and I'm fairly familiar with conservative/libertarian legal scholarship. Conversely, Kerr found some evidence that liberals have occasionally seized upon the phrase (e.g., this Duke Law Journal symposium). But that's not the same thing.

It's no wonder that Sunstein's sentence is so full of passive constructions: "there is increasing talk," "what is being called." If the sentence had an active verb and a subject, he'd have to come up some "increasing" examples of actual human beings using the phrase. It reminds me of the phenomenon that I pointed out earlier (here and here) of news articles that claim that Judge Alito is nicknamed "Scalito" for his resemblance to Justice Scalia -- but no one ever uses the term directly. The term is always ascribed to nameless "others" or "some."

In any event, Sunstein (or his editor?) again managed to create a misleading impression. This is disappointing.

UPDATE: A reader points out that Jeffrey Rosen is a repeat offender here, even claiming that specific (but still unnamed) people have argued for the "Constitution in Exile." In this article, Rosen claims that "[i]f Bush wins, his aides seem determined to select justices who would resurrect what they call 'the Constitution in Exile,' reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal." Unsurprisingly, Rosen does not name any actual Bush "aides" who have used that term.

Then, in this article, Rosen claims that conservative "activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power that have been dormant since the New Deal . . . ." Again, Rosen doesn't name any actual "activists" who "call" their objective the "Constitution in Exile."

SECOND UPDATE: I know, the term "Constitution in Exile" isn't all that significant of an issue, especially compared to the actual substantive ideas being discussed. But still, it's very weird to see Rosen and Sunstein pretending that conservatives themselves are pushing that term. It would be as if, in a single sentence in one 1995 article, a lone federal judge used the term "Constitution of Diversity" to describe various liberal ideas of the Constitution (i.e., protecting affirmative action, protecting diverse expressions of one's personal life, etc., etc.). And then, 9 years later, conservative scholars, for no discernable reason, started writing articles claiming that "liberal activists" are pushing "what they call" the "Constitution of Diversity," or that they are engaged in "increasing talk" about the "Constitution of Diversity."

Stuart Buck


Blogger Michael Drake said...

"Note the absurd implication that Bush has nominated judges who "appear to believe" that they should "restore[]" a "period in which racial segregation was constitutionally fine."

Why is this absurd (it's not an implication--it's just repeating what Sunstein plainly says)? Scalia, for instance, is on the record as being in favor of restoring Catholic doctrine to its status quo ante Reformation. To the extent that he believes the Constitution's true meaning has been distorted by activist precedent, then, the notion that he'd like to set the constitutional clock back to the meaning it supposedly had in (shall we say) less enlightened times seems less absurd than it does a straightforward statement of fact. I think Scalia would quarrel only with the notion that the Actual Meaning as it was construed in those halcyon days was somehow less "enlightened" than it is in our own.

I think it's a mistake to read into Sunstein's remarks some other, residual implication about the supposedly malign intent of constitutional reactionaries, although it's clear enough Sunstein finds such reactionism itself a political evil.

11:12 AM  
Blogger Stuart Buck said...

Why is this absurd (it's not an implication--it's just repeating what Sunstein plainly says)? Scalia, for instance, is on the record as being in favor of restoring Catholic doctrine to its status quo ante Reformation. This is one non sequitur after another. (1) Scalia was nominated by Reagan, not Bush. (2) As a Catholic, it is completely unsurprising that Scalia would oppose the idea of Protestantism, one of the main points of which was to offer a mode of Christianity that undermined the Catholic Church; (3) What Scalia thinks of Catholicism has absolutely nothing to do with his position on segregation (which he opposes).

I just went to the Federalist Society's national convention in November. The central theme was "Celebrating Brown v. Board of Education's Promise of Equality Before the Law." (I suppose it was all just a clever trick? Celebrating Brown = expressing yearning for the "halcyon" days of segregation?)

One of the centerpiece panels was led off by Michael McConnell -- a Bush nominee -- who famously wrote an article years ago to prove that originalism was consistent with Brown, and who began his lecture by noting that we all celebrate Brown as one of the great moral triumphs of judicial decisionmaking, etc., etc.

So -- come on. You know as well as I that Bush's nominees are not in favor of legally-mandated segregation.

3:30 PM  
Blogger Michael Drake said...

As to your point (1), Scalia is Bush's model judge, no?

As to your points (2) and (3), Scalia's attitude about Catholicism and the Reformation says much about his views on the "living" interpretation of ancient documents, no? (If not, substitute Thomas, who insists that everything in the Constitution means what it did in 1789.)

As to your last paragraph, I do indeed know as well as you that "Bush's nominees are not [generally] in favor of legally-mandated segregation." But then the central point of my comment was to deny that Sunstein's remarks implied otherwise.

5:55 PM  
Blogger Stuart Buck said...

Huh? What are you trying to say? Here, you say, "I do indeed know as well as you that 'Bush's nominees are not [generally] in favor of legally-mandated segregation.' But then the central point of my comment was to deny that Sunstein's remarks implied otherwise."

But in your first comment, you said, "it's not absurd -- it's just repeating what Sunstein plainly says."

So, when your first comment was that "Sunstein plainly says" that Bush's nominees want to take us back to segregation, your "central point" was to "deny" that Sunstein ever "implied" such a thing.

Again: Huh?

7:44 PM  
Blogger Michael Drake said...

Stuart, Sunstein doesn't say they want to "take us back to segregation." What Sunstein says is that they want to restore constitutional meaning to what it was during a period in which segregation (among other arguably counterconstitutional evils) flourished. That's not the same thing.

I did confuse matters a bit starting off by saying the bit you quoted was "just repeating what Sunstein plainly says." What I missed was that you had Sunstein saying conservatives want to restore the "period" itself, which I think is inaccurate. (I missed the oblique context for the quotation marks.)

12:18 PM  
Blogger Stuart Buck said...

Well, one can make that distinction in strictly logical terms, but why? If you say that you wish we could revive the popular music of the 30s and 40s, what's the purpose in my responding, "So you want to restore a period of popular culture in which segregation was accepted"? In strictly logical terms, that statement would be true. But in normal conversation, such a statement would leave behind a grossly erroneous impression that you had said something regarding segregation. Obviously, the mere fact that you like one thing about an earlier period doesn't even remotely imply that you want to restore everything about that period.

Similarly, the mere fact that a few Bush nominees might like a more restrictive interpretation of the Commerce Clause doesn't even remotely imply that they would also restore outdated interpretations of the Equal Protection Clause.

So what's Sunstein's point in bringing up segregation here? Just to be inflammatory?

1:39 PM  
Blogger Michael Drake said...

Um, returning to the pop music of ca. 1930 wouldn't enable segregation, whereas, you know, returning to the constitutional meaning of 1930 (arguably) would.

Again, however, that is not to argue or imply that those who want to return to the constitutional meaning of 1930 intend thereby to re-enable segregation. It is simply to point out the stakes (as Sunstein and others see them).

6:17 PM  
Blogger Stuart Buck said...

Nobody -- nobody -- is arguing for the "constitutional meaning of 1930." That is a straw man. Not to repeat myself, but no one -- not even the most ardent supporter of a rigid interpretation of the Commerce Clause -- is arguing for a 1930 interpretation of the Equal Protection Clause. Sunstein is smart enough to know the difference between the Commerce Clause and the Equal Protection Clause. Which makes it disappointing that he chose to be spuriously inflammatory. He's better than that.

6:52 PM  
Blogger Michael Drake said...

" arguing for the "constitutional meaning of 1930."

You might be right (I'm agnostic, but think the issue is far more arguable than you seem to think), but since I never raised that issue I'll submit.

1:05 PM  
Anonymous Anonymous said...

I get a chuckle out of watching you parse Prof. Sunstein's language here. As one of his students, I can tell you that this kind of wordplay is what the man has built his career on. He smiles, speaks gently, and then makes extremely controversial arguments with a question mark at the end. Look at his response to Kerr; it's classic Cass -- avoid the actual point in controversy, say gracious things, continue the basic deception. Really, ask around to people who've studied under him. This is par for the course. Simply put, he's an extremely aggressive advocate who uses language to mask the intensity. It's disheartening, because he's a nice guy.

4:53 PM  
Anonymous Anonymous said...

If no one is arguing for the constitutional meaning of 1930, shouldn't we ask why not? That is, how can a principled textualist/originalist argue for a 1930's reading of the Commerce Clause but not of Equal Protection? Doesn't the failure to do so compromise the Scalia/Thomas claim to nonpolitical judging? I mean, it's consistent to say that the constitution should generally evolve with the times or incorporate contemporary standards in some ways. And it's consistent to say it never should. But how can one defend a jurisprudence that is only selectively originalist?

Not, of course, that I would urge originalists to be wholehearted in their embrace of the 1930's. It's far more distressing to me that Scalia and Thomas ignore the originalist evidence on the 14th Amendment that suggests quite strongly that it permits race-conscious remedial measures (i.e., affirmative action). See, e.g., Jed Rubenfeld's Yale Law Journal article "Affirmative Action."

5:05 PM  

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