Today’s Minneapolis Star Tribune has an editorial on the Roberts nomination which isn’t particularly bad. But its concluding paragraph, especially this portion, jumped out at me:
If [Roberts] won’t answer, if he falls into word games and other avoidances, or if he indicates he subscribes to the beliefs of Scalia, Thomas and other supporters of the so-called “Constitution in exile” — meaning the Constitution as it was interpreted prior to the New Deal — then he should not be confirmed.
I’ll wager against any takers that when the time comes, the Strib will say that Roberts shouldn’t be confirmed. That goes for anyone Bush nominates, unless he suffers a massive synapse failure and inadvertently selects a Democrat. But I digress. What leaped out at me was the Strib’s reference to a “so-called ‘Constitution in exile,'” which forms the climax of the editorial. I am, as you all know, a lawyer, and I travel extensively in conservative circles, both locally and nationally. But until the last few days, I had never heard the phrase “Constitution in exile.” I realized when I read the Strib editorial that I’ve now heard the phrase three or four times in the course of a few days, without really noticing it. Plus, I know that when this kind of trend reaches the Star Tribune’s editorial page, it’s not exactly cutting edge. My curiosity was piqued. I did some research.
It turns out that, as the Strib’s editorial suggests, there is indeed a “Constitution in exile” movement. It is a movement of left-wing scholars and pundits, led apparently by Cass Sunstein, to make conservatives sound weird. The Volokh Conspiracy has the whole strange story.
In fact, there has been exactly one occasion–count ’em, one–on which a conservative has used the phrase “Constitution in exile.” That was Judge Douglas Ginsburg, in a book review published in 1995 in the little known journal Regulation. Here is the context:
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.
So there it is–a catchy phrase, but hardly a movement. A catchy phrase, moreover, that during the ensuing ten years, as far as I can tell, has never been used again by a conservative. In particular, Justices Scalia and Thomas, described by the Strib as supporters of the concept, have never mentioned such a thing. The Left has picked it up, however, apparently under the impression that it makes conservatives look wacky. So, don’t be surprised if, during Judge Roberts’ confirmation hearing, a Democratic Senator asks him a question about the “Constitution in exile.” And don’t be surprised, either, if Roberts looks at his inquisitor quizzically and says, “Huh?”