Sunday, April 17, 2005

The Constitution in Exile

I note that Jeffrey Rosen, in today's New York Times piece, is still bandying about the myth that conservatives/libertarians are champions of the phrase "Constitution in Exile." He repeatedly uses the phrase "Constitution in Exile movement." And he says:
In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of "the Constitution in Exile." . . . While not all the leaders of the movement immediately embraced Ginsburg's catch phrase (Edwin Meese says that the phrase Constitution in Exile suggests incorrectly that they have retired from the field of battle), among some legal conservatives it became a rallying cry.
That is a complete misrepresentation, as far as I can tell. As David Bernstein points out in response:
I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article.
Bernstein points out further inaccuracies here.

UPDATE: Andrew Sullivan is right on when he says of the Times article, "Sunstein gets to describe himself as a moderate; while Epstein gets to see himself portrayed as a mob boss in a horror movie."


Anonymous Anonymous said...

Rosen completely exaggerates the popularity of the "rallying cry" elsewhere in his article: It is sometimes known as the Constitution in Exile movement ...

Yeah, if by "sometimes" he means "when I write about it".

8:25 PM  

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