Since I'm a sort of dilettante Supreme Court watcher, and since the federal judiciary struck me as to some extent the sleeper issue in the 2004, I want to do my bit in continuing to inject a somewhat new concept into public discourse: "the Constitution in Exile." It's a concept I've read about in the past, but a spate of new articles has me convinced that it could become a reality.
Briefly, "The Constitution in Exile" is an idea cooked up by Douglas Ginsburg (Reagan's failed post-Bork, pot-smoking Supreme Court nominee) that concludes that with the New Deal, the old Consitution went into exile. U. of Texas law prof. William Forbath explains (in a paper given at a Duke Law Conference on the topic):
Judge Douglas Ginsburg's evocative phrase "the Constitution-in-Exile" recalls the New Dealers' battle against the classical liberal Constitution fashioned in the Lochner era. For Ginsburg, the Supreme Court's embrace of the New Deal revolution cast the old Constitution into exile, its memory "kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty." Until that day, Ginsburg and other restorationist scholars lament, the old Constitution's fundamental commitments -- to limited national government and due regard for states' rights, to economic liberty and the rights of property -- will remain forsaken. Constitutional culture will remain marred by a "double standard," vigilance in the name of personal and political liberty forever mocking an indifference to economic liberty. National government will remain a swollen and intrusive bureaucratic enterprise that would find no place in the Constitution of liberty. This restorationist perspective has had a significant influence on the Rehnquist Court and elsewhere in the provinces of constitutional law. This conference itself is evidence that during the past decade the Constitution in exile has regained ground.
Who cares about what a "few scholars" think, you might ask? Well, these aren't just scholarly questions.
In September, U. of Chicago law prof. Cass Sunstein wrote an article in the Washington Monthly, "Hoover's Court Rides Again" which should give you pause:
There is a great deal of talk about restoration of the "Constitution in Exile"--the Constitution as it existed in 1932, before President Franklin Delano Roosevelt's New Deal. The National Labor Relations Act of 1935, not to mention the Civil Rights Act of 1964, would have been impermissible.
Under the Constitution in Exile, rights to have recourse against discrimination, and to protection of privacy, were minimal. A far more significant right was freedom of contract, which threw minimum-wage legislation into constitutional doubt. The Supreme Court tends to move slowly, and under a second Bush term, it would not adopt the Constitution of 1932; but it would probably move in that direction.
For many people, the most pressing issue is the fate of Roe v. Wade and women's right to choose. In 1992, the Rehnquist court cut back on the ruling but preserved its core, by a narrow 5-to-4 vote. New Bush appointments might well lead the court to return the issue to the states. More broadly, a newly constituted court would be unsympathetic to any claim that the Constitution protects sexual and reproductive liberty from state intervention.
But if several appointments are made under an extended Bush presidency, the new court would likely do much more. It might strike down most campaign-finance reform. It would probably be inclined to invalidate parts of the Endangered Species Act and the Clean Water Act as beyond Congress' authority. It might well elevate commercial speech to the same status as political speech--thus forbidding controls on commercials by tobacco companies, among others. It would probably limit congressional efforts to protect disabled people, women, and the elderly from various forms of discrimination. More radically, it might interpret the Second Amendment so as to reduce the power of Congress and the states to enact gun-control legislation.
Jeffrey Rosen, writing in The New Republic, actually thinks that the Roe V. Wade thing is just an excuse to get Consitution in Exile judges on the court:
Since neither party has a strong political incentive to see Roe overturned (agitation for doing so comes from interest groups on the extreme right, not from the Bush White House, which understands that overturning Roe would lead women to defect from the GOP en masse), it's hard to imagine that the desire to confirm anti-Roe judges would lead a majority of Senate Republicans to cut their own throats.[...]
The legal doctrines to which Ginsburg referred were largely abandoned in the 1930s to allow the federal government broad discretion to regulate health, safety, the environment, and the workplace. The most important of the post-New Deal doctrines was an expansive interpretation of Congress's power to regulate interstate commerce, which the Court extended to include any activities that might affect commerce indirectly. In 1995, however, the Supreme Court began taking tentative steps toward resurrecting some of the constitutional limitations on the regulatory state that had been dormant since the '30s. In controversial 5-4 rulings, the Court limited Congress's power to ban guns in schools, for example, and to punish violence against women, holding that the laws did not involve commercial activities and therefore couldn't be justified by Congress's authority to regulate interstate commerce.
These decisions have been appropriately criticized as activist and contemptuous of Congress by liberal supporters of the regulatory state. A provocative new book by Thomas Keck accurately calls this The Most Activist Supreme Court in History because it has struck down 33 federal laws since 1995, the highest annual average ever. Nevertheless, the Rehnquist Court's so-called federalism revolution has not yet delivered what the conservatives hoped. Every time the conservative justices have appeared on the brink of striking down a federal statute with real political support, such as the Environmental Protection Act, O'Connor or Kennedy have written hedging opinions reassuring moderates that the Court intends to challenge congressional power only at the margins. But, if O'Connor or another liberal justice were to retire, and if Bush nominated a true believer in the Constitution in Exile, the federalism revolution would go into overdrive. And Democrats might not be able to block the appointment because, unlike abortion, federalism is not, at the moment, an issue the public understands or cares much about.
Though I don't agree that Roe is just a red herring, I agree wholeheartedly with that final point. Most voters don't even know what the term federalism means in its modern legal usage. People might vote on abortion rights or gay marriage. But no one knows anything about the interpretation of the interstate commerce clause that allows the federal government to regulate things like gun control, environmental protections, non-discrimination.
To put it another way, there is something about the republican's radical agenda that seems particularly well-suited to judicial intervention (one might say "activism" if one were being ironic). Quoting from a David Strauss piece in Legal Affairs:
[T]he issues that the Democratic Party most cares about these days—jobs, health care, helping the middle and working classes overcome economic dislocations, protecting Social Security and Medicare—are not ones about which the courts can do very much. (The one big exception, to which I'll return shortly, is reproductive choice.) Many of the hot-button Republican issues, though—cutting back on the regulation of business, for example, and promoting religion in public life—are very much matters through which the courts can further the Republican cause.
[...]President Bush's agenda, though, unlike Roosevelt's, is reactionary and exclusionary. People who are concerned about the courts should know that if they want pragmatic, moderate judges, they should vote for Kerry. If they want radical change, in a decidedly right-wing (and, I think, wrongheaded) direction, Bush is their man.
I think I would put it even another way. Some republicans want to repeal the New Deal, and the New Deal concept of the federal government as a helpful/protective force in people's lives -- MediCare, MediCaid, Social Security, Welfare, EPA, etc.
Of course, this kind of agenda is extremely unpopular. It resembles Grover Norquist's "starve the beast" idea, and rests on a fairly radical and outside-the-mainstream vision of what the Constitution means. republicans know that the idea that big entitlement programs or government protections are unconstitutional wouldn't sit well with the people that are the recipients of these same programs and protections. So they don't run on these ideas. Did you hear anything about privatizing social security during the presidential campaign? Maybe a sentence here or there. Did you hear anything about judges who would return us to a pre-New Deal vision of the consitution? No, but you heard a lot about judges who strictly interpret the law. Our republican friends know the idea of "the Constitution in Exile" would never get majority, or even significant minority, approval. So they don't mention it in political campaigns. Since judges are "unelected," as they're fond of reminding us, they can appoint judges to do the dirty work for them. Kevin Drum (whence I got the Jeffrey Rosen article) calls this stealth conservatism.
What's the grand irony here? Isn't it obvious? Which party is always preaching to us about how much they hate activist judges? Which party is always telling us that they want to the people to decide issues, not some unelected liberal? I'll give you a hint. It begins with "r" and ends with "epublicans."