The Volokh Conspiracy

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?

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.

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?)

In a previous post on the purported (but non-existent) "Constitution in Exile movement," I suggested that liberals who use the phrase are likely trying to imply not simply that some elite legal libertarians would like to revive constitutional limitations on government power that were enforced before the New Deal, but also that these scholars were hostile to all constitutional law jurisprudence that developed since the New Deal. But I noted:

Unlike conservative originalists, 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 [update: Will Baude points out that Epstein has been critical of Roe and seems skeptical of Casey].

Now, Cass Sunstein writes:

Would the Constitution of 1787, or of 1920,* increase our liberty or diminish it? For now, let's just notice the real radicalism of any effort to go in that direction. In 1787 and in 1920, racial segregation by the federal and state governments was believed to be constitutional. In 1787 and 1920, sex discrimination by government was just fine. In 1787 and 1920, there was no general right of privacy. In 1920, free speech was understood quite narrowly. Congress would almost certainly have been forbidden to protect workers' right to strike. In 1920, minimum wage laws were unconstitutional.

But as co-blogger Randy points out in a response to Sunstein, there doesn't seem to be anyone out there, liberal, conservative, or libertarian, who thinks that the pre-New Deal Supreme Court had things completely right, or even almost right. Conservative originalists object to the entire line of Lochner cases, including Meyer, Adkins, and Gitlow (see below). Libertarians (and many conservatives) think the Court had too narrow an interpretation of freedom of speech, and tunnel vision on issues of race.

But perhaps Judge Doug Ginsburg, originator of the "Constitution in Exile" phrase, is an exception, and he, and perhaps a secret group of acolytes, want to restore constitutional law to its state in 1930? Sunstein writes:

For Judge Ginsburg, and for some others, the court had the Constitution right in 1930. Judge Ginsburg also believes that the Constitution in Exile forbids Congress from "delegating" its authority to administrative agencies, such as the Environmental Protection Agency, by giving them broad discretion. Judge Ginsburg believes that since 1930, the Supreme Court has "blinked away" individual rights, above all the right to private property—and created rights of its own choosing, like the right to choose abortion.

But here is the sum total of what Judge Ginsburg has to say about the "Constitution in Exile":

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.

I find it difficult to tease out of this paragraph--much less out of Ginsburg's subsequent repudiation of the nondelegation doctine in the same piece--what Sunstein does.

*Sunstein uses 1920 advisedly, because by 1930--still pre-New Deal days, let's keep in mind--the Court had dealt a blow to sex discrimination in Adkins v. Children's Hospital (later reversed by a New Deal Court decision), and Meyer v. Nebraska in 1923 had recognized broad liberty rights under the Due Process Clause, likely including a version of the right to privacy, but New Deal decisions had cabined such rights dramatically until Griswold v. Connecticut in 1965. So, if anything, in at least some ways the pre-New Deal Court was far more agreeable to Sunstein on "liberty" issues than was the New Deal Court. (And the Court's broader free speech jurisprudence began with Gitlow in 1925.)

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.

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.