Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Monday, January 03, 2005

Constitutions, in 2020 or in Exile

Right now I'm cramming for my Evidence exam tomorrow (specifically hearsay, which I'm told is really important*). But that's really boring, so I thought I'd take a break and comment on Orin Kerr's recent post on the whole "Constitution in Exile" kerfuffle.

(For those not up to speed, liberal law-prof Cass Sunstein recently made the claim that conservative jurisprudes use the term "restoring the Constitution in Exile" to describe their judicial program - which apparently includes declaring the entire post-New Deal regulatory state unconstitutional. His basis for this claim was a single use of the term "Constitution in Exile" in a law revue article 9 years ago. A pretty minor controversy, I know, but conservatives objected since it made them seem like a creepy cabal, when, in fact, we're only a deeply unsettling cabal. That's a world of difference.)

Anyway, I'm glad that there's at least a basic agreement that we conservatives do not in fact use the term "restoring the Constitution in Exile" to describe our nefarious jurisprudential designs. The actual secret code-word, for the curious, is "Reinstating the Iron Rule of Cthulhu". Which is way cooler.

I do think, though, that Professor Kerr is overly dismissive when he comes to discussing Sunstein's substantive fear, that there's serious support among conservative legal academics and judges for the goal of invalidating the modern regulatory state. Sure, we're not talking about huge numbers of people (picture it: legions of Federalist Society members sharpening their halberds, preparing to storm the Department of Health and Human Services headquarters). But there are people (not all of them cranks) who want to do this, or would if they thought they could get away with it as a practical-political matter. And there are a lot more people who favor a toned-down version, not abolishing the regulatory state altogether but halting its growth, pruning it here and there. After a couple of decades of this, the difference between further pruning and wholesale abolition might be hard to see.

This is not to say that we're in any actual danger of seeing the abolition of the federal regulatory state any time soon. We ain't. But, particularly since all that's required to install even the zaniest legal regime is to capture a 5-4 majority on an unelected body of cranky gerontocrats, it doesn't seem unreasonable that conservatives and liberals should be attentive to all the far-out legal end-states the other side wants (however faintly) to achieve. Consider how quickly same-sex marriage went from crackpot theory (mid-70s) to respectable thought experiment (late-80s) to impending reality (mid-90s) to virtual litmus test for admission into respectable liberal circles (today). If nobody's minding the slope, things can get awfully slippery awfully fast.

That's why I think conservatives ought to pay close attention to the Constitution in 2020 conference, and to similar such goings-on in the future. In the words of one astute analyst, "You can't keep the Democrats out of the White House forever." We're eventually going to have to deal with activist-progressive judicial nominees and judges (as opposed to liberal caretakers like Breyer and Ginsburg, who seem primarily interested in preserving existing Warren Era precedents against the Rehnquistian onslaught). It would probably behoove us to have some sense of what we're up against. People like Bruce Ackerman, Harold Koh, Reva Siegal, et al., probably aren't going to be the Supreme Court nominees of the next 20 years (well, maybe Koh), but they're going to be the friends of those nominees, the people who write the law revue articles those nominees read, the people who help shape the respectable liberal consensus to which those nominees subscribe. It's therefore important to know what they think, and where they want to go. Their ideas may be crazy, castles-in-the-sky kinds of stuff (see generally, Deliberation Day), but that doesn't mean they wouldn't be dangerous in the hands of a Supreme Court justice someday.

*Get it?!?