Liberal Interlocutor: So, do conservative legal thinkers really want to hold that Social Security is unconstitutional?

Conservative: Rosen uses the term "Constitution In Exile" movement when in fact conservatives don't use that term.

Liberal: You're not answering my question. Do conservative legal thinkers really hold that the EPA is an unconstitutional enterprise?

Conservative: I would reject the claim that Cass Sunstein is a moderate. He is really very liberal.

Liberal: Oh my God! It's true! You maniacs really want to cripple the federal government!

Conservative: Did I say that?

Liberal: No, but you won't deny it.

Conservative: You're paranoid.

Liberal: Well, then, deny it now.

Conservative: Did I mention how Cass Sunstein is really a liberal?

> 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 am sure the conservative mainstream media, the Mighty Wurlitzer, and the Volokh Conspiracy, not to mention Instapundit, will show similar restraint the next time some ultra-marginal person on the far left wing of Democratic/progressive politics makes a silly statement, and will not trumpet it far and wide as additional evidence of how "libruls" are "destroying America".

Cranky

Do you really think Rosen thinks there is some sort of cabal opposing new deal judicial thinking? It seems that he is describing a commonality of opinion to which he has attached a handy label. What's unusual about that?

"Oh my God! It's true! You maniacs really want to cripple the federal government!"

If I might be so bold as to speak for the "you" in this statement:

A. We're not maniacs. If liberals are interested in ever regaining any semblance of their former power and influence in American life, they will need to lose the blindness and dull the contempt. We are your natural (and historical) allies.

B. We share many of the ultimate objectives that liberals hold dear. In this case, a cleaner environment. It seems to many of us that these objectives might be better achieved in a manner consistent with an undertanding of the constitution that recognizes the utility of limits on government power. In our view, this would not "cripple" the federal government; on the contrary, it would strengthen it by firming up the ground upon which it governs.

C. We are very open to debate on these questions. What we will resist with some vehemence is efforts to silence this line of inquiry by caricaturing it as reactionary when it is in reality the exact opposite - i.e. like FDR, willing to experiment with new approaches and to pay attention to the results of past experiments.

> We're not maniacs. If liberals are interested
> in ever regaining any semblance of their former
> power and influence in American life, they will
> need to lose the blindness and dull the contempt.
> We are your natural (and historical) allies.

We are all free to chose our nicknames on forums which allow anonymous posting. But I have a very very hard time imagining Ged of Earthsea, the man who travelled from one end of the earth to the other to learn that the demon he chased was inside himself the whole time, ever saying anything approaching your paragraph quoted above.

Cranky

"But I have a very very hard time imagining Ged of Earthsea, the man who travelled from one end of the earth to the other to learn that the demon he chased was inside himself the whole time, ever saying anything approaching your paragraph quoted above."

Most self-professed liberals of my acquaintance could profit from just such a journey. Just the thing to broaden one's imagination. ;-)

More to the point: My claim is that the blind contempt of liberals for libertarians is ultimately self-defeating. How is this inconsistent with the views of the man you so well describe? Like Ged, I am authentically curious.

"Restoring the Lost Constitution : The Presumption of Liberty"
by
Randy E. Barnett

Hmmmm...

"The situation becomes worse when the representatives of a particular social interest--perhaps because of the very unrealistic and unrealizable nature of its demands--are shut out of the political process. Having no access to political bargaining or the making of decisions, they find their original conception that the world of power is sinister and malicious fully confirmed."

The interesting thing about this is that it describes the situation that many Christian conservatives found themselves in when Roe v. Wade was handed down. There was some hand wringing about a liberal conspiracy, but it was joined by real effort in creating a political movement.

Jeffrey Rosen and Michael Greve were on the Diane Rehem Show today. Very interesting discussion.

So here's a major newspaper taking ideas seriously as ideas, and all the professors rush to assert that ideas have no effect on the real world. Intriguing ...

"So here's a major newspaper taking ideas seriously as ideas ...".

No.

Here's a newspaper taking a Kafkaesque ConLaw spoof of the Xfiles as a serious threat to our democracy. See this quote for an example, "''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."

So you can be part of the conspiracy without even knowing that you are part of the conspiracy.

Like I said, its the Xfiles meets Kafka.

So does that mean I can start a "Constitution In Exile" movement? Or has Sunstein or Rosen trademarked the phrase?

The situation becomes worse when the representatives of a particular social interest--perhaps because of the very unrealistic and unrealizable nature of its demands--are shut out of the political process." -- Hofstadter

ROTFL. What could be more unrealistic than the idea that "deficits don't matter," as our Vice President has said; or that the "jury is out" on evolution, as our President proclaims? Hofstadter wrote those words while the Democrats were trying to create a democracy in SE Asia using 10% of the population to fight the other 90%.

Clearly, the lunacy of an idea is no bar to its acceptance in Washington. I'm surprised a "libertarian" like Dan would believe otherwise.

"or that the "jury is out" on evolution, as our President proclaims?"

If one is a Popperian, as most competent scientists are, the jury is always out on any scientific theory. Theories can never be fully proven, only disproven. This doesn't stop them from being useful models for scientific inquiry. It does stop them (theories in general, including the creation myth) from being taken as unquestionable dogma.

"'Restoring the Lost Constitution : The Presumption of Liberty'
by
Randy E. Barnett

Hmmmm..."

This may be a distinction without a difference, but I'll attempt to elucidate the distinction, and you can decide for yourself if there is a difference.

"Constitution in Exile" conjures up images of monarchical (and thus inherently reactionary) restoration. Going back whole cloth to exactly where we were, warts (and pre-FDR jurisprudence had plenty of those) and all.

"Restoring the Lost Consitution" could mean checking to see what babies were thrown out in the bathwater of the revolution and making an effort to save them. Babies like "the presuption of liberty". "Loss" implies worth, and so only those aspects which had worth need be recovered. No one speaks of the loss of the horse and buggy. The loss of civil liberties is another matter.

Can we cut to the substance?

Are there people in legal academia and the legal profession who would strike down federal welfare state laws that are politically popular as unconstitutional (under the Commerce Clause, or the Takings Clause or the Fourteenth Amendment) if they became federal judges?

Yes.

Could Bush make some of these people federal judges?

Yes.

Is it a "conspiracy theory" to point this out?

No.

Are the folks who might be federal judges pretending this is a conspiracy theory because they don't want the political attention?

They don't seem to be loud and proud about it if Volokh is anything to go by.

It's an interesting debate on the legal right between those who would defer to Congress on everything, and those who want to go back to Lochner. Aren't NYT readers entitled to hear about it?

"Having no access to political bargaining or the making of decisions, they find their original conception that the world of power is sinister and malicious fully confirmed."

Does Daniel Drexner really believe that THE NEW YORK TIMES has "no access to political bargaining or the making of decisions"?

Has anyone noticed how strange it is for the Volokhies, of all people, to complain about conspiracy theories.

They're going about this the wrong way. They should start selling a line of "Consitution in Exile" sportsware with a glamour shot of Richard Epstein on the T-shirts. Loud and proud!

The conspiracy involves those who benefit from the current arrangements painting those who want to go forward as on the contrary wanting to go back.

The status quo is always "popular" if the poll questions are phrased the right way. Segregation was also "popular" until it was struck down by the court. The pertinent question is not popularity but justice and fidelity to the constitution.

It is entirely possible that we could achieve the ends the welfare state laws were created to pursue more effectively using laws more consonant with constitutional principles. It is also of course arguable that this is not so. It would be more productive to debate this question than to paint potential participants in that discussion with the epithet of the month.

Ged,

Do you think libertarian goals should be pursued through the ballot box or the courts? Or is that a matter of indifference? Does it matter if those libertarian goals are radical, like abolishing drug laws or public schools?