False Exile

The Star Tribune‘s concern is not unique; Googling “Roberts ‘Constitution in Exile'” currently generates more than 400 references.

If you’ve never heard of the “Constitution in Exile,” you’re not alone. The catchy phrase originated in a 1995 book review by Judge Douglas Ginsburg, which was published in the journal Regulation:

In the ten years that have since elapsed, it is not clear that any conservative has ever used the phrase “Constitution in Exile” in any published writing. But fear of this fictitious “movement” caught on quickly on the left. Liberals like Cass Sunstein have railed against the “Exiles.” In April of this year, liberal fears of a Constitutional restoration broke into the mainstream with an article by Jeffrey Rosen in the New York Times Magazine, titled “The Unregulated Offensive.” Rosen articulated the central tenet of what he repeatedly referred to as the “Constitution in Exile movement”: the “thesis that many of the laws underpinning the modern welfare state are unconstitutional.” Rosen warned that if the “movement” prevails, federal regulations in areas as diverse as securities regulation and environmental protection may be struck down. And he explicitly linked the alleged movement’s resurgence to President Bush’s impending Supreme Court nominations, quoting Chris DeMuth of the American Enterprise Institute:

Put briefly, the liberal fear is that conservative judges may resurrect decisions such as Lochner v. New York, decided by the Supreme Court in 1905, which invalidated on “substantive due process” grounds a New York statute which limited the number of hours that could be worked by bakers. The Court held that the law unconstitutionally infringed “the general right to make a contract in relation to his business [which] is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.” (198 U.S. at 52) The return of this pre-New Deal jurisprudence is the liberals’ ultimate nightmare when they contemplate a conservative Supreme Court. The Star Tribune expressed it this way:

This formulation is interesting, because instead of referring to the actual theory on which the pre-New Deal Court invalidated economic legislation–substantive due process–the Star Tribune shifts over to the commerce clause. Why?

For two reasons: First, the idea that any significant number of conservatives want to revive Lochner and substantive due process is ludicrous. For better or worse, application of substantive due process to generally accepted economic regulations is a dead letter, and there is virtually no one who wants to resurrect it. The describes Justices Scalia and Thomas as “supporters of the so-called ‘Constitution in Exile,'” but in fact, Scalia is the Court’s most implacable foe of the concept of substantive due process, which he has bitterly denounced:

So it is hardly plausible to suggest that any noteworthy conservative judges yearn to bring back the days when substantive due process was used to invalidate liberal legislation.

But there is a second, more important reason for the liberal reticence on this topic: The fact is that substantive due process is alive and well, but on the left. It is now liberals who use this doctrine to strike down legislation of which they disapprove, especially in the social sphere. A perfect example is Lawrence v. Texas, in which the Court held that Texas statute prohibiting homosexual sodomy was unconstitutional. The Court’s majority relied on the same substantive due process doctrine that led an earlier Court to strike down wage and hours laws. Justice Kennedy wrote:

So the same reasoning that the Court used in 1905–the Constitution’s guarantee of liberty protects a baker’s right to work more than 60 hours a week, if he so chooses–was used in 2003 to hold that the same guarantee of liberty protects a homosexual’s right to sodomy. Why freedom of sex but not freedom of contract? Who knows? But in any event, it is clear that the left does not want to abandon the doctrine of substantive due process; it merely wants to continue using it to liberal ends. Conservatives like Justice Scalia, on the other hand, take a principled position: there is nothing in the Constitution that guarantees the right to work more than a certain number of hours a week, nor is there anything that guarantees a right to sodomy, abortion, etc. These are public policy issues on which judges, as citizens, may hold strong opinions; but nothing in the Constitution creates a right that trumps the democratic process.

THIS IS WHY liberals have shifted their focus from the actual basis of the conservative rulings of the first third of the century–substantive due process–to the commerce clause. What significance, then, does this truncated version of Constitution-in-Exile-phobia have? Not much. The commerce clause cannot be used to invalidate state legislation (like the New York law at issue in Lochner), and a large majority of federal economic regulations incontestably involve interstate commerce. Cases in which the scope of the Constitution’s commerce clause–“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”–is decisive will be relatively few and relatively insignificant.

THE ONE COMMERCE CLAUSE CASE that liberals have used to attack Judge Roberts illustrates this point. People for the American Way, in its dossier on Roberts, says:

The reference is to Rancho Viejo v. Norton. This case arose under the Endangered Species Act; the Fish and Wildlife Service blocked a California real estate development project because it jeopardized the arroyo southwestern toad. A three judge panel of the Court ruled against the developer’s appeal, and the developer petitioned for en banc review by the entire court. A majority declined to hear the case en banc, but Judge Roberts dissented. He argued that the Court should have heard the developer’s argument that the regulation at issue did not constitute a “[regulation of] commerce . . . among the several States”:

Judge Roberts’s point was not that the Endangered Species Act was unconstitutional, but that its application to the specific facts at issue may not be constitutionally justified by the commerce clause. Further, Roberts specifically noted that, apart from the commerce clause, there may be other legitimate constitutional bases for the Fish and Wildlife Service’s action which should be considered by the Court.

Any suggestion that Judge Roberts’s jurisprudence contains a hint of a desire to revive the “Constitution in Exile,” understood as a return to the pre-New Deal jurisprudence of Lochner and similar cases, is absurd.

In truth, what the left fears is not that conservative judges will follow the liberal lead and create new “conservative rights” that are mentioned nowhere in the Constitution. Rather, the left fears that conservative judges will read the Constitution as written and attribute meaning to the commerce clause, the takings clause, the Second Amendment, and other “forgotten” provisions of that document, while at the same time abandoning the left’s project of using substantive due process to impose liberal policy preferences where those preferences fail to command a popular majority.

For understandable reasons, those are fears that the left prefers not to articulate in public.

John Hinderaker is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.