Legal Affairs contains an excellent debate between law professors Cass Sunstein and Randy Barnett on “The Constitution in Exile.” It’s worth reading in its entirety (two or three sittings may help).
I take Sunstein to be arguing that it’s fair to speak of a “Constitution in Exile” movement because more than a few conservative scholars and judges (1) wish to breathe life into constitutional provisions and/or doctrines that have fallen by the wayside (2) in order to achieve a certain set of outcomes that are radically different than the ones that prevail now. Barnett agrees that he would like to see certain provisions of the Constitution (such as the takings clause, the commerce clause, the Second Amendment, the Ninth Amendment) taken more seriously. But he denies that this wish is grounded in the desire to achieve certain outcomes, much less to restore the specific constitutional jurisprudence of the 1920s, as liberals who talk about the Constitution in Exile suggest. Rather, I understand Barnett to want the whole written constitution taken seriously (applied in a manner consistent with the original, publicly stated intent) because (1) otherwise judges are just making it up as they go along and (2) there is no reason why we should empower judges to do so. To the extent Sunstein responds to this, I take his answer to be pragmatic — having judges interpret the Constitution in non-originalist ways works better, in some sense, than (1) having judges use the originalist approach or (2) dispensing with judicial interpretation of the Constitution altogether. Sunstein fails to demonstrate this proposition, nor could he be expected to do so in the context of even a lengthy debate.
So how should we describe the movement to which Barnett belongs — “constitution in exile” or “originalist”? To me the former label is too relative. If the Supreme Court were to overturn, say, Roe v. Wade, Miranda, and Lawrence v. Texas, then suddenly liberal law professors would be pining for the restoration of the toppled Constitution. (Moreover, would Sunstein have applied the label “Constitution in Waiting” to those who supported the outcomes in Roe, Miranda, and Lawrence before they were reached? How about “the Guerilla Constitution”?) Better, therefore, to use labels that seem to describe a judicial philosophy, rather than labels that simply identify the group which feels most aggrieved by the Supreme Court’s jurisprudence at a given moment.
UPDATE: Here’s one thing I’ve noticed in debates like this one and, more so, a debate I heard at the dreaded Federalist Society some years ago between Michael McConnell and Jeffrey Rosen (who nowadays insists on using the “Constitution in Exile” label to describe originalists). The opponent of originalism tends to assume that if he can point to any result that the proponent considers desirable which can’t be reached through originalism, or if he can show that any leading originalist has failed to follow originalism in any instance, then orignalism has been discredited, and judges should be free to do more or less whatever they want. That’s good debating, but not good jurisprudence.
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