The Volokh Conspiracy: Constitution in Exile Post Chain, 2004

[Orin Kerr, December 29, 2004 at 1:57pm] 6 Trackbacks / Possibly More Trackbacks

Is "The Constitution in Exile" A Myth?: In a book review in the latest issue of The New Republic, Cass Sunstein renews his claims that "[t]here is increasing talk [among conservatives] of what is being called the Constitution in Exile — the Constitution of 1932, Herbert Hoover's Constitution before Roosevelt's New Deal." Sunstein has suggested this a number of times before (see, e.g., here and here), and the claim has been repeated recently by The New York Times and by my colleague Jeffrey Rosen. The suggestion is that influential conservative lawyers express their goal for the courts as being the restoration of "the Constitution in Exile."

  The odd thing is, I can't recall ever hearing a conservative use the phrase "the Constitution in Exile." I asked a couple of prominent conservatives if they had ever heard the phrase, and they had the same reaction: they had never heard the phrase used by anyone except Cass Sunstein and those discussing Sunstein's claims.

  As best I can tell, the phrase "Constitution in Exile" originally appeared in a book review by D.C. Circuit Judge Douglas H. Ginsburg in 1995 in the course of discussing the nondelegation doctrine in the journal Regulation. As you can see from the article itself, the use of the phrase is not exactly prominent: it appears once, near the end of the introduction. In any event, the use of the phrase in Ginsburg's review inspired lots of critical commentary from legal academics, including its own symposium in the Duke Law Journal (you can read the Foreward to the symposium issue here). But my initial google and Westlaw research failed to uncover direct evidence — beyond the initial book review, which I just read today — that conservatives or libertarians have used this phrase to describe their goals.

  Why does it matter, you wonder? After all, some on the right do want the Supreme Court to bolster some constitutional doctrines that the Court deeemphasized in the post-New Deal era. Critics could decide that they think this agenda should be described as amounting to a wish to restore the Constitution in Exile. But if I understand it correctly, Sunstein's claim is different: the claim is that conservatives themselves use the phrase — "right-wing activists . . . talk about restoration of the 'Constitution in Exile'." The difference matters, I think, because describing something as being "in exile" suggests recognition of a revolutionary agenda. If a government is overthrown and the old leaders flee but remain intact, referring to the old leaders as "the government in exile" suggests that the old government is just biding its time before it can launch a counterrevolution. The rhetorical power of Sunstein's claim lies in its suggestion that conservatives see their own goals as truly revolutionary. If the phrase is not actually used by conservatives, but rather is a characterization by their critics, I think that makes a notable difference.

  I have enabled comments. I am particularly interested in uses of the phrase "Constitution in Exile" by conservatives that I may have missed. (This isn't my specialty area, so it's quite possible that it is in fact used and I just missed it.) Also, if the comment function isn't working, try leaving a comment here.

  UPDATE: Steve Bainbridge offers commentary here.

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[Orin Kerr, January 3, 2005 at 2:26pm] 0 Trackbacks / Possibly More Trackbacks

Cass Sunstein Responds to "Constitution in Exile" Post: Last week I wrote a post "Is the 'Constitution in Exile' A Myth?," questioning claims that an influential block of conservatives have an agenda for the courts that they themselves describe as restoring the "Constitution in Exile." I noted that I could only find one use of the phrase "Constitution in Exile" by a conservative — a single comment buried in a 1995 book review by Judge Douglas Ginsburg. I asked whether the phrase "Constitution in Exile" was something that conservatives actually used, or rather was merely a phrase that critics (most notably Cass Sunstein) have used to describe what they contend is a growing conservative legal movement.

Cass Sunstein e-mailed me a response, which he has graciously agreed to let me post:

  As you say, the phrase comes from Chief Judge Ginsburg of the DC Circuit, in a piece in Regulation magazine. Without using the phrase, he also spells out his argument in some detail in a remarkable piece on constitutionalism in the Supreme Court Economic Review, from the Cato Institute. This piece has been given as a lecture at several places, including the University of Chicago Law School, where a packed room gave it respectful attention.
  A glimpse of the argument: Judge Ginsburg writes that judges were faithful to the Constitution for most of the nation's history - from the founding, in fact, through the first third of the twentieth century. But sometime in the 1930s, "the wheels began to come off." His strongest complaint is about the Supreme Court's decision, in 1937, to uphold the National Labor Relations Act. Judge Ginsburg objects that this is "loose reasoning" and "a stark break from the Court's precedent." In his view, the Court's acceptance of the National Labor Relations Act is not merely "extreme"; it is also "illustrative."
  Randy Barnett's powerful book, Restoring the Lost Constitution, is definitely in the same general vein (consider the title!); so too is some of the work of my colleague Richard Epstein, especially but not only on the commerce power. So too for much conservative writing on the nondelegation doctrine. Justice Thomas writes significant opinions that support the general goal (restoring the lost constitution, or what Judge Ginsburg calls the Constitution in Exile), as of course you know; and Scalia is often with him.
  The idea of the lost Constitution, or the Constitution in Exile, or the original constitution, is very prominent in the conservative community. In fact the idea of originalism goes hand-in-hand, for many people, with the idea of a Constitution in Exile, whether or not that phrase is used. I think the Constitution in Exile phrase is especially evocative, and I admire Judge Ginsburg a great deal (despite major disagreements on this point). But the goal is what's important, not the specific term, and it seems to me that we've all witnessed the rise of that goal, especially in the last decade or so, with the increasing assertion of a certain form of originalism.

  I have two responses, one narrow and the other broader. The narrow point is that I understand Sunstein to agree with my first post that there is no evidence that a conservative has used the phrase "Constitution in Exile" outside of a single reference in a 1995 book review. On this point, my apologies to Professor Sunstein if I simply misread his prior writings; I had understood Sunstein to be claiming that conservatives are themselves using the phrase "the Constitution in Exile" to describe their legal goals. To the extent that we are in agreement that the term is primarily Sunstein's, and has not been used by conservatives outside of a 1995 book review — and even then, apparently only as a descriptive matter, not as a normative one — then that addresses the topic of my prior post. This is an important point of consensus, I think: we can all agree that there is no evidence that conservatives refer to their agenda for the courts as restoring a Constitution in Exile.

  Now, let's turn to the broader question, one that I did not address in my first post: terminology aside, is there a conservative movement to restore a pre-New Deal constitution? Unfortunately, I am not the best person to answer this: I am not a constitutional theorist, don't really follow the literature, and don't teach constitutional law. Nor do I know how you measure when a certain amount of writing or scholarship amounts to a "movement." If there is a conservative movement to restore a constitution in exile, however, it is news to me. I can think of a handful of conservative law professors who have some pretty far-out views about how to reshape constitutional law, but I tend to think that this says more about constitutional theory in legal academia today than it does about any "movement" in conservative legal circles. Nor do I see how their claims amount to wanting wholesale restoration of the pre-New Deal constitution. Perhaps part of the problem is that I don't see the direct connection between originalism and restoring a constitution in exile. I see the former as a mode of constitutional interpretation, and one that leaves open a reconciliation with stare decisis. The latter apparently would dismiss stare decisis and attempt to reconstruct a very particular constitutional order.

  Some readers will agree with Sunstein that there is in fact a conservative constitution-in-exile movement. But if you take this position, don't you have to agree that there is a liberal constitution-in-exile movement, too? Here's a thought experiment to show you what I mean. Let's imagine Cass Sunstein has a cousin who is identical to Sunstein in every way except one: he is a conservative. This conservative version of Sunstein - let's call him Moonstein - could write something like this:

  There is increasing talk among liberals of what is being called "the Constitution in Exile" — the Constitution of the 1960s, Justice Brennan's Constitution. Their target is Ronald Reagan and the Bushes, who they claim pushed a false Constitutional vision designed to strip the Bill of Rights of its essential guarantees and emphasize property rights over human rights. They have set as their goal the restoration of the progressive Constitution forced into exile by by a string of Republican presidencies starting in 1968.
  The organizing strategy behind the liberal Constitution in Exile movement was explained by Professor Mark Graber in a 2002 law review article, Rethinking Equal Protection in Dark Times, 4 U. Pa. J. Const. L. 314 (2002). Graber urged his fellow liberals to plot for the return of the progressive "constitution in exile." He wrote: "Progressive arguments . . . are best understood as constructing shadow constitutions or constitutions-in-exile. Parties out of power in many nations form shadow cabinets. These bodies consist of the persons who might hold various executive offices when that coalition gains control of the government. The American equivalent apparently is the shadow constitution. Scholars out of power in the United States author various shadow constitutions that detail the constitutional meanings that might become the fundamental law of the land should the author's preferred coalition gain control of the federal government."
  Restoring the liberal Constutitution in Exile has become an increasingly dominant theme of progressive legal thinkers. For example, a collection of some of the nation's most prominent progressive legal minds (including Cass Sunstein) will be meeting at Yale Law School in the spring to develop "a shared vision of what, at least broadly speaking, that Constitution in Exile is, so that we can support and work for its realization." A website and blog set up for the conference reveals the agenda. For example, Bruce Ackerman sets as one of the more modest items on the agenda to "[r]oot out the federalism decisions since Lopez, and return to the status quo, circa 1994. Root all of them out, not some of them." His more "transformative" agenda would include "overrul[ing the] Slaughterhouse [cases] and mak[ing] the [Privileges and Immunities] Clause the basis for fundamental positive rights of citizenship." Other scholars at the conference urge a new Constitution entirely. One scholar urges that the Constitution must be reconceived to serve "a basic purpose: the protection of human dignity." Another contends that the law must "revisit both the 14/19th amendments and the general welfare clauses so as to take on the deep inequalities of the contemporary social order inside the United States, to reconceive the meaning of equality."

A fair response to Moonstein might note that Moonstein is cherry-picking a few comments and imagining that these professors have real influence in order to create the impression of a major movement afoot. The fact that a few law professors are arguing in favor of major constitutional change shouldn't be terribly surprising: that's what constitutional law professors do, right? My sense is that the same criticism applies to Sunstein and claims of a conservative constitution-in-exile movement.

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[Juan Non-Volokh, April 16, 2005 at 6:34pm] 1 Trackbacks / Possibly More Trackbacks

"Constitution in Exile" in NYT:

Tomorrow's New York Times magazine will feature a Jeff Rosen article on alleged conservative movement to restore the "Constitution in Exile." Slate has a preview here. A prediction: The article will conflate efforts to restore textual limits on enumerated powers with "Lochnerism" and judicial enforcement of libertarian ideology. Rumor also has it at least one co-conspirator will be featured in the piece.

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[David Bernstein, April 16, 2005 at 10:57pm] 7 Trackbacks / Possibly More Trackbacks

Rosen on the "Constitution in Exile":

I’m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen’s N.Y. Times magazine piece on the purported "Constitution in Exile" movement.

Jeff was a Yale Law classmate of mine, and I'm generally a great admirer of his work. But I do want to take issue with a couple of things in this particular piece.

First, 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. I acknowledge that some Federalist types, including me, do believe that various pre-New Deal constitutional doctrines should be revived. But let's be clear on the fact that the idea that there is some organized "Constitution in Exile movement," that is in fact using that phrase is pure fiction. Why does this matter? Because the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves. Would I, for example, be considered a member of the "Constitution in Exile movement" even though I don't buy Epstein's theory of the Takings Clause, and think Lochner was probably wrongly decided? [UPDATE: It also matters because there's a reason actual believers wouldn't use the "Constituion in Exile" moniker. Unlike conservative orginialists, the more libertarian elements on the legal right--the folks that Rosen interviews for his piece--generally don't have any nostalgia for the pre-New Deal or even pre-Warren Court jurisprudence on issues such as the Equal Protection Clause's protection of minorities, the Incorporation of the Bill of Rights against the states, the First Amendment, etc.; I know that both Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too. The phrase "Constitution in Exile" suggests a desire to revive pre-New Deal constitutionalism whole hog, when the folks Rosen refers too mostly want to add additional limits on government power. In fact, the interest groups most critical to the Dems on judicial nominations--feminists, ACLU, minority activists--would almost certainly by happier with a Justice Janice Brown or Alex Kozinski than with a Justice Luttig or Bork].

[material deleted; it was unfair]

Finally, Jeff, while not explicitly critical of libertarian constitutional theory, does seem to be implicitly raising the alarm regarding potential future conservative or libertarian judicial activism. I hope it's not impolite to mention that this alarm-raising comes with a touch of irony from someone whose first published law review work defended the proposition that the Ninth Amendment protects judicially enforceable natural rights, and, moreover, that courts should refuse to enforce a constitutional amendment banning flag-burning, because such an amendment would itself be an unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991).

UPDATE: Oh, and it should go without saying that none of the individuals Rosen identifies as pushing the purported "Constitution in Exile movement"--Greve, Epstein, Barnett, Bolick, etc.--have any political power. The odds that Bush will nominate a libertarian type to the Supreme Court (unless its Janice Brown for other reasons) are slim to none. He may nominate someone like Luttig who believes in some limitations on federal power, but you would be hard pressed to find any originalist who believes that the current scope of federal power complies with the original meaning of the Constitution. Even Bork, who certainly has little in common with Greve et al., has always acknowledged this point, though he's argued that it's too late to do anything about it, a rather odd (and politically convenient) perspective for an originalist, and one that's always been controversial even among his acolytes. And if the Bush people were really intent on pushing a constitutional revolution, wouldn't they have followed in Reagan's footsteps and appointed a prodigious fraction of conservative and libertarian legal academics to the federal bench?

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[David Bernstein, April 16, 2005 at 11:35pm] 6 Trackbacks / Possibly More Trackbacks

Correcting Rosen's History:

Jeff Rosen is a learned guy who has written some rather perceptive things about the so-called Lochner era in his law review scholarhip. See 66 Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history. To wit:

Rosen: All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties.

O.K., besides the fact that there is no "Constitution in Exile movement", there is nothing blatantly inaccurate about the above; the Republicans did dominate the United States from 1896 to the Roaring Twenties. But Jeff is clearly implying that there was some correlation between libertarian interpretation of the Constitution and Republican politics, in a way that would both draw parallels to today, but also suggest that such views have always been tied up in partisanship. In fact, however, some of the most libertarian Justices of the period Jeff refers to–Melville Fuller (Cleveland), Rufus Peckham (Cleveland), and James McReynolds (Wilson) were appointed by Democrats. Some of the most statist Justices–Holmes (Roosevelt), Stone (Coolidge), Roberts (Hoover), and, at the tail end, Cardozo (Hoover) were appointed by Republicans. Constitutional interpretation simply wasn’t a partisan (though it was a political) issue, and with few exceptions the Justices of the period from both parties accepted constitutional limitations on both federal and state regulatory power that none of today's Justices would countenance.

Rosen: Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.

There is a wealth of scholarship, starting with historian Charles Warren in the 1910s and 20s, through recent work by myself and others (and Cushman, 83 Va. L. Rev. 559; Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. Am. Hist. 63 (1985)), showing that the Supreme Court, especially through 1923, rarely invalidated economic regulations. The Court, and lower courts, allowed restrictions on free enterprise ranging from bans on options trading to Sabbath laws to child labor laws (at the state level) to a wide range of draconian professional licensing laws to many, many more types of regulations. Between 1923 to 1934, the Supreme Court grew somewhat more aggressive about invalidating regulatory laws, but, at the same time, (1) state courts virtually abdicated the field; and (2) even the Supreme Court upheld some rather unprecedented and draconian regulations, such as the Railway Labor Act (unanimous opinion at 281 U.S. 548).

Rosen: The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," referring to the celebrated Social Darwinist and advocate of laissez-faire economics.

Spencer has been unfairly tarred as a "Social Darwinist", and Holmes himself is far more accurately depicted as a Social Darwinist, but I won’t go into that here. I will say that first, Social Statics is a book by Spencer, something that for some reason most constitutional scholars don’t know. The book advocated the libertarian "law of equal freedom," which Holmes analogized to the sic utere tuo ut alienum non laedes principle in law (use your property in such a way so that it does not hurt that of others). Holmes pointed out that the sic utere principle had never been adopted by the Court as part of the U.S. Constitution (and indeed, the Court, Holmes noted, upheld many types of economic regulation), so he could not understand why maximum hours laws would be unconstitutional. Note that Holmes was neither accusing his brethren of being Social Darwinists, or of adopting a laissez-faire view of the Constitution; indeed, on the latter point, he was pointing out that Lochner was inconsistent the with the Court's general indifference or hostility to laissez-faire as a constitutional principle. By stating that the Fourteenth Amendment did not enact Social Statics, Holmes was simply stating that the Fourteenth Amendment did not require the states to adopt a radical libertarian system of government.* (Relatedly, Spencer was not simply an advocate of laissez-faire in the economic realm, but a radical libertarian more generally, who, among other things, was an early and passionate supporter of women's rights.)

Rosen: Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act.

You can read the NIRA case here, and I challenge you to find any hint of laissez-faire economics in the opinion. Indeed, the unconstitutionality of the fascistic NIRA was not even controversial on the Court–all nine Justices, including Brandeis, Cardozo, Stone, and Roberts, thought the law clearly exceeded federal power. More generally, Jeff should know better than to mix and match the Lochner line of due process cases and the scope of federal power cases. The two lines of cases happened to both be overturned around the same time during the New Deal, but they were in fact, separate lines of cases, with separate rationales, and "inconsistent" results (e.g., the Supreme Court upheld state child labor laws challenged under the due process clause, but invalidated federal child labor laws as beyond the scope of federal power).

I recognize that the history Jeff recounts is not the main point of his article. However, if one is going to write about those who want to restore pre-New Deal doctrines, it's important to know, as libertarian academics who support full or partial "restoration" generally do, what those doctrines actually were and what effect they had. Relying on Progressive mythology in critiquing the views of libertarians who know better simply isn't helpful.

* Clarification: Enforcing liberty of contract in one case hardly means that the Court was adopting an overall laissez faire view of the Constitution. Holmes was arguing that Lochner was a logical opinion only if the Court was willing to apply sic utere broadly as a matter of constitutional law. This is actually quite silly if you read the majority opinion, which draws quite reasonable distinctions between constitutional workplace regulatory laws meant to protect worker or public health, and unconstitutional restrictions on liberty of contract that have no valid "police power" purpose. Holmes was a master of the flip aphorism, but one shouldn't confuse flip aphorisms with legal acumen.

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[Orin Kerr, April 17, 2005 at 3:37pm] 8 Trackbacks / Possibly More Trackbacks

The Constitution-in-Exile Myth Returns: I just finished reading the New York Times piece by my friend and colleague Jeffrey Rosen on the alleged "Constitution in Exile" movement. Having written on this topic a few months ago, see here and here, and also having discussed it a bit with Rosen during his research into the piece, I wanted to add a couple of thoughts.

In my view, the problem with Rosen's essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential "movement." I don't think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn't.

Rosen downplays this problem, but I think a close look at the evidence reveals that Rosen is stretching. For example, here is what Rosen says about the influence of the alleged C-I-E movement in the current administration:

The influence of the Constitution in Exile movement . . is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.''

So the best we can do is get the view of one anonymous person that other mostly unnamed people believe in a set of principles that the anonymous person says match the views of this alleged movement? Surely the last four years of Bush 43 would have provided more concrete evidence than that. As for Addington, note what Rosen does not: that while Addington in the Vice President's office urged DOJ to take a position that may or may not have reflected the influence of the alleged movement, DOJ apparently refused all of these urgings. So much for influence.

Rosen also overplays his hand in describing the development of the alleged movement. Consider his description of Douglas Ginsburg's 1995 essay that apparently contains the only known use of the phrase "Constitution In Exile" by a conservative or libertarian. Rosen portrays the essay as a manifesto urging an eager audience to take action:

By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging.
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.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''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.''

If you go back and read the actual article, though, a different picture emerges. Ginsburg's alleged manifesto was a review of a book by David Schoenbrod arguing for the return of a strong nondelegation doctrine in constitutional law. The bit about the Constitutution in Exile is a two-sentence paragraph at the end of Ginsburg's introduction, before he turns to Schoenbrod. Ginsburg doesn't applaud Schoenbrod's Constitution-in-Exile-ish proposal, however; he is quite critical of it. Ginsburg's review argues that the answer to the policy concerns raised by excessive delegation is not constitutional law, but statutory law: he embraces an idea introduced by Justice Stephen Breyer in a 1984 article in the Georgetown Law Journal that expensive regulations should require affirmative Congressional approval. While Rosen says Ginsburg called for a resurrection of the Constitution in Exile, Ginsburg actually recommended Congressional adoption of a proposal made by that right-wing radical Stephen Breyer.

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[Orin Kerr, April 18, 2005 at 1:54am] 5 Trackbacks / Possibly More Trackbacks

The NY Times and the Hunt For the "Constitution in Exile": Given that the Constitution in Exile movement doesn't seem to exist, some may be wondering why the editors at the New York Times commissioned Jeff Rosen to write a long and detailed cover story about it for the Sunday Times magazine. I've been mulling it over, and have come up with four possible explanations for their interest:

1) Any old newspaper can report on a real trend, but it takes the paper of record to invent one. Feeling emboldened by their successful invention of "man dates" last week, the editors wanted a greater challenge.

2) The Times editors have been reading lots of Hayek recently and have become fascinated with libertarian thought. Their library stopped subscribing to Regulation back in 1996, however, so they didn't know about more recent developments.

3) Any story that features a hot picture of Richard Epstein is going to sell a lot of newspapers. 'Nuff said.

4) Tainting future Bush judicial picks with some kind of shadowy extremism might just influence a future Senate vote. All the better if the shadowy movement doesn't actually exist: the harder it is to find the movement, the harder it is to prove that Bush's pick has no connection to it.

I'm sure other possibilities exist, but these four seem the most plausible to me.

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[Randy Barnett, April 18, 2005 at 12:03pm] 2 Trackbacks / Possibly More Trackbacks

Accurate But Fake: Over the past few weeks, I have had two interesting experiences with the fact checking process of the MSM: the New Yorker and the New York Times to be precise. The New Yorker was the first to contact me to fact check Margaret Talbot's story on Justice Scalia. In order to show that the Justice was exaggerating the history of originalism, the original story contained some questionable claims. I found it interesting, and reassuring, that the fact checkers sought out a professor like me who subscribes to originalism to double check these claims. All the errors I noted were corrected in the final story, though of course this did not unduly affect its overall negative slant. A week later, I was having dinner in Princeton with a group of professors and graduate students after my talk there. When I asked if anyone had seen the article, Keith Whittington (author of
Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review) piped up that he had been contacted to fact check it. So not one but TWO originalist scholars had been contacted. Very impressive indeed.

Last week, I was contacted by the NYT to fact check what was going to be said about me in Jeff Rosen's Sunday Magazine story on the so-called "Constitution in Exile" movement. Like others, I had never heard this phrase until long after it was being used by "moderates" like Cass Sunstein. As the blogosphere is already effectively dismembering the substance of Rosen's in-depth report on the VLC (Vast Libertarian Conspiracy), I thought I would confine myself to my experience with the Times fact checking process.

Almost all the claims the fact checker wanted to confirm had some sort of minor defect, most of which had nothing to do with the obviously negative slant of the piece. For example, it described Angel Raich as formerly paralyzed; it had the wrong number of states adopting medical cannabis statutes.

One erroneous claim, however, was definitely part of the story's slant that I was a part of an organized "Constitution In Exile" movement: that the Cato Institute had either paid for or published my book, Restoring the Lost Constitution. This claim was removed from the finished article after I explained that the book had been published by Princeton in its normal acquisition process, but that Cato had assisted me during my university sabbatical year when I wrote the first draft of the manuscript (as I acknowledge in the book). Score one for the fact checking process.

The only accurate but misleading claim that remained was that my "book identifies a series of regulations that he says the courts should consider constitutionally suspect, from environmental laws to laws forbidding the mere possession of ordinary firearms, therapeutic drugs or pornography."

I knew about the environmental law issue, of course, as I mentioned it to Jeff and offered it in the book as an example of an "unhappy ending" that I think represents an oversight in the original Constitution. Jeff had tried very hard to get me to say what laws would be unconstitutional under my approach. As my approach is presumptive, however, this is hard to answer in the abstract, as the success of any challenge to a particular law will depend a lot on specifics. An analysis of the constitutionality of any particular law would require a lengthy analysis.

So I pointed to the section of my book where I discuss what I think is the unfortunate consequence that some environmental activities would be within the jurisdiction of state not federal regulation. In the book, I offer this as one of the very rare instances in which the Founders did not anticipate a genuine cross-border national problem properly handled at the national level. He ended up using this in his story, of course, as I knew he would—albeit without my disclaimer that I offered this as an example of a bad consequence I would like to see corrected by constitutional amendment (that would pass in a week if the Court ever held Congress to its Commerce Clause power on this issue).

I had to ask the fact checker for the pages where I discuss "firearms, therapeutic drugs, and pornography" as I did not recall having done so. Sure enough all three examples are in one single sentence as illustrations of the sort of pure "possessory" laws that would be suspect under the conception of the state police power that I defend in the book. When I read the fact checker the entire paragraph (he did not have the whole sentence or a copy of the book), I stressed that it applied only to pure "possessory" crimes. I told him that, contrary to what the use of these examples implied, I never claimed that the manufacture or sale of these items could not, constitutionally, be regulated. He said that he would consult with the editors and get back to me. Over dinner, it occurred to me that if they added "mere" possession, this would ameliorate (though not entirely eliminate) the implication that my approach ruled out all regulation. After dinner, the phone rang and the fact checker informed me that the editors had decided to insert the word "mere" in front of possession (without my even suggesting they do so).

What is interesting about having experienced this fact checking process first hand is that, in both cases, there was a sincere effort by the fact checkers to verify suspect claims--claims that really were inaccurate. In each case, where I explained my objections, these claims were then corrected. Yet the overall misleading slant of the NYT story was preserved. None of this is the fact checker's fault, or even the fault of the fact checking process, which I found to be admirable. With both the New Yorker and NYT, the fact checkers were sincere in their desire to get the facts correct. Both were very impressive and the resulting articles were more accurate as a result.

But an important lesson here is that accurate facts can still be used to compile a highly distorted story like the one by Jeff Rosen, a person I have known and respected for many years—dating back to his very useful student article on the founders' conception of unenumerated rights. It was out of this respect for Jeff that I gave him a long and candid phone interview last February, but I could tell from the questions what the slant would ultimately be.

Despite the MSM's claim to greater accuracy than blogs, fact checkers cannot alter the spin an author can put on what the National Lampoon used to call "true facts"—especially when this is the very spin the editors had in mind when they solicited the article. Apart from the inaccurate constitutional history noted by David, I cannot quarrel with any of the facts reported in Jeff's piece. They are true, even if the impression given by the story to credulous readers of the New York Times is false. Fittingly, the "accurate but fake" nature of the "Constitution in Exile" story is best illustrated—literally—by the unrecognizable morgue photos of Richard Epstein and Michael Greve—both would be completely unrecognizable to me had I not read who they were supposed to be—and the "Snidely Whiplash" picture of Chip Mellor.

Yes this Really is Richard Epstein

While all were certainly actual photos taken of these three men by the Times photographer, at the same time they all were fake. How fitting.

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[David Bernstein, April 18, 2005 at 3:54pm] 1 Trackbacks / Possibly More Trackbacks

Rosen Channeling Schwartz:

Back in March 1987, Prof. Herman Schwartz wrote an article for The Nation that bears striking resemblance to Rosen's N.Y. Times piece (to be clear, I'm not accusing Rosen of plagiarism, or even of ever having read Schwartz's article; it's just that 1987 seems like a time of similar hysteria over perceived libertarian influence on conservative judicial thought prompted, as in 1987, by a forthcoming vacancy on the Court, and by the nomination of a libertarian (Bernard Siegan instead of Janice Brown) to a Court of Appeals seat. Of course, Siegan got voted down, and the next USSC nominee was the very unlibertarian Robert Bork):

A new breed of theorists is calling for vigorous judicial activism in defense of--what else?--property rights. Concurrently, the pre-New Deal Supreme Court, which struck down federal and state laws against union busting, child labor and other abusive business practices, is back in favor. . . . This neo neoconservatism has been most thoroughly developed by University of Chicago Law professor Richard Epstein, one of the administration's most influential legal advisers. . . Epstein argues that those clauses of the Constitution that forbid the government to take over private property except for public use and wit fair compensation, and that bar the states from excessive interference with contracts, where intended to ensure that private property remained virtually sacrosanct. He then reads those clauses as rendering unconstitutional most welfare, environmental, is stating gift tax, renewal, zoning and then control laws, along with almost every other piece of social legislation of the past two centuries. Unlike most constitutional lawyers, he thinks the Court decided correctly in Lochner v. New York, when, in the name of property and contract rights, it struck down an attempt to limit working hours for bakers. . . . Such judicial activism is usually condemned in the administration circles. . . . Nevertheless, this new faith in an activist judiciary is gaining ground among some on the right who are normally its harshest critics.

Schwartz's concerns about a libertarian takeover of the federal judiciary were, alas, seriously premature, as are, undoubtedly, Rosen's. In fact, though libertarians are a growing (though still miniscule) presence in legal academia, their political influence has probably decreased where it counts. Republican honchos are more concerned than ever about their religious conservative base, and the relevant folks in the Justice Department--who in the Reagan years were a highly intellectual group that took ideas, including libertarian ideas very seriously--are undoubtedly very bright, committed conservative lawyers, but show, as far as I can tell, few signs of similar intellectual ferment (in practicalterms, e.g., other than McConnell, where are the Borks, Winters, Easterbrooks, Ginsburgs, Williamses, and Posners on the judicial nomination radar screen?)

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[Eugene Volokh, April 20, 2005 at 1:36pm] 0 Trackbacks / Possibly More Trackbacks

Randy Barnett Wins Spooner Award:

No, not for supposed spoonerisms, which he isn't prone to, and which are named for a different Spooner. Laissez Faire Books awarded him their 2004 Lysander Spooner Award for Advancing the Literature of Liberty, for his Restoring the Lost Constitution. Congratulations to Randy!

Laissez Faire Books' blog also has a post on Randy and that New York Times Magazine article.

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[Orin Kerr, May 2, 2005 at 11:40am] 2 Trackbacks / Possibly More Trackbacks

Constitution-in-Exile Debate: Over at Legal Affairs, the Debate Club will be featuring a debate this week between Cass Sunstein and co-blogger Randy Barnett about the alleged Constitution-in-Exile movement. Only Cass has written so far, and his initial post strikes me as, well, odd. His post is very vague, but if I'm not mistaken he is suggesting that many or most judicial conservatives believe in some kind of radical vision of the Constitution in Exile. The key question seems to be which radical vision different conservatives like: as best I can tell, Sunstein is suggesting that some like Ginsburgian strike-everything-down radical activism, while others like Scalian uphold-everything radical activism. Huh? Well, I guess we'll have to wait and see how the debate shakes out. Of course I'll be particularly interested to see what my co-blogger Randy has to say. (Hat tip: Howard)

UPDATE: Randy posted his initial reply to Sunstein just I was posting. An excerpt:

Let me begin this week-long exchange, Cass, with a denial. There is no "Constitution in Exile" movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.
For obscure reasons that we may perhaps glean from this week's debate, the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.

Sounds like it will be an interesting week over at Debate Club.

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[David Bernstein, May 2, 2005 at 12:31pm] 1 Trackbacks / Possibly More Trackbacks

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[Randy Barnett, May 3, 2005 at 1:49pm] 0 Trackbacks / Possibly More Trackbacks

Debate With Sunstein--Part Deux: My reply to Cass Sunstein's latest post on the "Constitution in Exile" is now up in the Legal Affairs Debate Club.

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[Randy Barnett, May 4, 2005 at 12:57pm] 0 Trackbacks / Possibly More Trackbacks

Sunstein-Barnett Debate, Episode III: My reply to Cass Sunstein's latest post on the "Constitution in Exile" is now up at LegalAffairs' Debate Club. For another take on the so-called Constitution-in-Exile movement, check out Michael Greve's essay Liberals in Exile.

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[David Bernstein, May 5, 2005 at 7:53am] 1 Trackbacks / Possibly More Trackbacks

A Revisionist View of Bolling v. Sharpe:

In yesterday's installment of the Sunstein/Barnett debate, Sunstein raised the case of Bolling v. Sharpe, holding that the federal government may not segregate schools in the District of Columbia. Randy responded:

You are right to point out that the Supreme Court's decision in Bolling v. Sharpe is very difficult to reconcile with the text of the Constitution. For this reason, you know that among constitutional scholars of all stripes Bolling is one of the most controversial and difficult cases ever decided by the Court. I do not have a fully worked-out opinion on this complex issue, but suppose that a commitment to originalism entails the reversal of Bolling.

I have an article forthcoming on Bolling in the Georgetown Law Journal, in which I explain that Bolling has been incorrectly interpreted as a "reverse incorporation" case applying 14th Amendment equal protection standards to the Federal government under the Fifth Amendment, when it was really a pure Lochnerian due process case, a fact Warren ultimately chose to obscure in the final opinion. I conclude:

[W]ith its roots in Buchanan v. Warley and the 1920s educational liberty cases, the liberty right to be from from compelled segregation in education is perhaps better-grounded than the [currenly recognized] liberty right to terminate one’s pregnancy, to engage in homosexual sodomy, or to be free from arbitrary punitive damages awards. This will not satisfy critics who oppose the Court’s substantive due process jurisprudence across the board. But for the vast majority of legal scholars who do support the Court’s current substantive due process jurisprudence, Bolling should be an easy case to defend.

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[Randy Barnett, May 5, 2005 at 3:01pm] 0 Trackbacks / Possibly More Trackbacks

Sunstein-Barnett Debate, Round 4: My response to Cass Sunstein's latest foray on the so-called "Constitution in Exile" is up now on the LegalAffairs Debate Club. Only one more round to go.

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[Randy Barnett, May 6, 2005 at 2:46pm] 2 Trackbacks / Possibly More Trackbacks

Sunstein-Barnett Debate, Grand Finale! In his last post of our week-long debate on the supposed "Constitution in Exile" movement, Cass Sunstein goes out with a bang. My final reply is now posted here.

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[Randy Barnett, July 2, 2005 at 11:33am] 2 Trackbacks / Possibly More Trackbacks

Three Lessons for the Great Debate About to Begin: I recall very well the debates over the nominations of Robert Bork and Clarence Thomas to the Supreme Court. Both featured the most elevated public discourse over constitutional interpretation in my lifetime. Of course, both nominations were also marred by ugly personal attacks and false charges. For the upcoming nomination, we can expect both types of discourse. To that end, some may wish to review the debate I recently had with Cass Sunstein over at LegalAffairs.org. Cass and others such as Jeff Rosen have promoted the trope "Constitution in Exile" to describe those who favor enforcing the whole Constitution according to its original meaning. The alternative is to enforce only portions of the text according to whatever meaning yields "good" results.

It is useful to review this debate to see the difference in our approaches so one can better track and participate constructively in the forthcoming debate. My approach focuses on restoring portions of the "lost" Constitution that the Courts have long ignored--such as the Commerce Clause, the Necessary and Proper Clause, the Second Amendment, the "public use" portion of the Takings Clause, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Cass consistently focused, not on the text of the Constitution, but on a list of results--either good results he favored preserving or bad results he contended that the fictitious "Constitution in Exile movement" wanted to achieve.

LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.

This debate should not allowed to be turned into a debate over results. It should instead be a debate over constitutional method and the restoration of portions of the text that have long been discarded. This includes challenges to judicial conservatives who, like Justice Scalia, would continue to ignore the Ninth Amendment or Privileges or Immunities Clause because they fail to meet his standard for a "rule of law." Ignoring portions of the Constitution because they fail to conform to your theory of the "rule of law" is no different than ignoring portions that fail to conform to your theory of "justice."

LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.

And by "ignoring" I include adopting an extremely deferential "rational basis" approach that yields all discretion to the legislative branches, as Justice Stevens explicitly and Justice Scalia implicitly recently did in the medical cannabis case when applying the Necessary and Proper Clause. This is a game that both "liberals" and "conservatives" can play. It is not "activist" for judges to demand of legislatures that they have a real and justified reason for restricting the liberties of the people--something more than mere assertion. Whenever legislatures need not meet any burden of justification whatsoever--e.g. Justice Stevens' approach in both Raich and Kelo--the scheme of federalism and limited enumerated powers is undermined.

LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.

Another technique for ignoring the text is to elevate the importance of past nonoriginalist judicial decisions in the name of "precedent." The "liberal" side of the Court has never accepted the "precedents" of Lopez and Morrison. Nor could "liberal" or "moderate" justice be counted on to accept any precedent that does not accord with the results that drive their approaches. For the same reason, a "conservative" (or libertarian) Justice should give little weight to nonoriginalist precedent that justifies ignoring portions of the text. It is the Constitution to which a judge (and Senator) takes an oath, not past decisions by the Supreme Court. The issue of precedent is very complicated, however. I explain some of these complications here.

On the other hand, you may expect nominees to deflect potential criticisms by embracing precedent to avoid the charge that they would revive now ignored portions of the text. Given that many originalists do favor adhering to precedent, this defense may be entirely sincere. To the extent, however, that a nominees is willing to elevate the past opinions of the Court over the text of the Constitution where the two clearly conflict, he or she would be abandoning anything like an originalist approach to interpretation. This would not be a good sign for the future. Inevitably selective reliance on precedent is one of the most common methods of avoiding the text of the Constitution when the text is an obstacle to achieving particular results--my definition of "judicial activism."

Let me offer as my hope for this forthcoming debate, the penultimate paragraph of my exchange with Cass:

Over the course of this week, Legal Affairs readers have been provided a preview of a great debate that lies ahead. As my final contribution to our discussion, let me express my hopes and aspirations for that debate. I hope that the political process upon which we rely to select Supreme Court Justices will not be thwarted by name calling, conspiracy mongering, or false claims about bad motives on either side. I hope that judicial nominees will not be presented with a laundry list of results intended to serve as a litmus test for ideological acceptability. I hope they will be asked instead about their judicial philosophy and their commitment to the rule of law. I hope that those who participate in this great debate will frame their arguments in language that clarifies the issues rather than obscures them. And I most fervently hope that the debate will not be conducted in a topsy-turvy newspeak that charges originalists with being insufficiently conservative and equates adhering to the rule of law supplied by the Constitution of the United States with activism or radicalism!

You can read the entire debate here.

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[Randy Barnett, July 3, 2005 at 1:28pm] 0 Trackbacks / Possibly More Trackbacks

Justice Thomas On Precedent: In my earlier post I offer this as Lesson Three for watching the upcoming Supreme Court confirmation hearings:

LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.

On Pejmanesque, Pejman Yousefzadeh, observes:

One of the reasons why I like Justice Thomas is that while he respects precedent, he is willing to cast it off if the original precedential decision did not conform with original intent. And why shouldn't he? There is no point in compounding a mistake, after all.

He then links to his interesting Tech Central column, Needed: Thomist Jurisprudence. Here is a taste of that:

Those who -- like me -- are disheartened by the decisions in Raich and Kelo may potentially take heart in the hope that Justice Thomas's powerful dissents will have sown the seeds for the emergence of a Court majority in the future that will reflect Justice Thomas's thinking. Perhaps that new majority will be crafted via help from Justice O'Connor's successor -- who could do worse than to adopt Justice Thomas's approach to the law and to intellectual issues. As law professor Orin Kerr puts it, "The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless -- and particularly against powerless racial minorities -- feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea."

Let me take this as an opportunity to make two points:

First, Justice Thomas is a conservative politically, not a libertarian. I am completely certain of this because I have personally heard him say so very recently and with gusto. Nevertheless, while there are Thomas opinions with which I disagree (e.g. his dissent in Lawrence v. Texas), his philosophy of judging comes closest to the one I recommend, which shows how method should come before results. Where I disagree with him, it is incumbent upon me to show how he has deviated from original meaning (as I think he sometimes has done). I still find it interesting that Justice Scalia did not join Justice Thomas in his concurring originalist opinions in Lopez and Morrison, or Justice Thomas's originalist dissenting opinion in Kelo. In Kelo, Justice Scalia (along with Justice Thomas) joined Justice O'Connor's excellent, but nonoriginalist, dissent instead. I believe this tells us much about the different judicial philosophies of these two conservative justices.

Second, it is worth considering Justice Thomas's own words about precedent from his Kelo dissent:

The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.

This is the judicial philosophy that I hope will be shared by whoever the President decides to nominate. Otherwise, "judicial conservatives" will forever be taking their orders from nonoriginalist justices of the past, rather than from the text of the Constitution to which they take their oaths, and which most of the people still think should restrict those who govern them.

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[David Bernstein, July 24, 2005 at 6:49pm] 1 Trackbacks / Possibly More Trackbacks

Article on Bolling v. Sharpe:

SSRN has posted my article, "Bolling, Equal Protection, Due Process, and Lochnerphobia," forthcoming in the Georgetown Law Journal. Here is the abstract:

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.

The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment's Equal Protection Clause.

A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment's Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner.

Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent.

Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.

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