Monday, April 25, 2005

Constitution in Exile

In the middle of a futuristic piece, Stuart Taylor has this pointed observation about those who believe there is such a thing as the "Constitution in Exile" movement:
This alleged agenda includes holding key New Deal laws unconstitutional, ending federal regulation of the economy in the name of states' rights, crippling state regulation in the name of property rights, and perhaps even imposing a Christian quasi-theocracy on the nation. Many liberals associate this (largely imaginary) agenda with what they call the conservative 'Constitution-in-exile movement' -- a group of not-very-powerful people whose leaders could fit into one phone booth and have little influence on any justice except (sometimes) Thomas.


Blogger David Nieporent said...

Paul, Scalia may support these views in the abstract, but unlike Thomas, he's no revolutionary. He's not willing to overturn longstanding precedent willy nilly. He hasn't signed on to Thomas's many, "I think we should overturn this precedent, but the parties haven't challenged it on those grounds" opinions.

As for "want to dump a bunch of legislation on commerce clause grounds, witness U.S. v. Lopez," that's like saying, "There are a lot of states splitting up, witness Virginia and West Virginia." U.S. v. Lopez is a case. One case. It was a challenge to an extremely egregious law, it was decided on extremely narrow grounds, and it hasn't been used as anything resembling a significant precedent. Now, if Raich turns out the way federalists want, then you might have something to talk about.

They DO want to dump a whole bunch of establishment clause jurisprudence. Witness the repeated attacks on the Lemon test by, among others, good old Scalia.

As gd said, Lemon is a corpse. Scalia wants to bury it because it, and the other establishment clause jurisprudence, is incoherent. Was it Scalia who pointed out that under established precedent, private religious schools could receive books, but not maps, leaving him to wonder about books with maps in them?

1:16 AM  
Blogger Stuart Buck said...

Actually, I believe that was Moynihan who originally made that excellent observation.

Anyway, David is right: One relatively ineffective case tinkering at the margins of the Commerce Clause does not a revolution make. And the Lemon test is indeed incoherent -- not just Scalia, but a majority of the Court has at one time or another signed onto an opinion abandoning Lemon. (Hence Scalia's famous remark that Lemon was like a ghoul that kept rising from the dead.)

8:42 AM  
Blogger Stuart Buck said...

Well, the whole point of Rosen and others is that the supposed "Constitution in Exile" movement wants to overturn the entire New Deal and the modern administrative state (not Roe or certain Establishment Clause cases). It doesn't support that argument to point out that many conservatives are unhappy with Roe or Establishment Clause doctrine.

10:14 AM  

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