The New Republic’s Jeff Rosen has flushed me out (again) as a “leader” of a “Constitution in Exile movement” seeking the overthrow of the United States government, or at least the New Deal. My game is up, and the force of the indictment demands both a specific admission of sins and an exculpation of my duped followers—including half the D.C. Circuit and, quite possibly, the Chief Justice of the United States. In attending to those solemn obligations, I have changed the order of the counts of the indictment for purposes of exposition, and I have added links to buttress the evidence against me; the original (May 4) text appears here.
It is true, as Jeff Rosen charges, that the Exile scheme has a history. Even in its infancy, alas, the movement drew unwanted notice:
IN 2005, IN AN ARTICLE for The New York Times Magazine, I [Rosen] described a nascent movement of pro-business and libertarian federal judges and think tank activists who hoped to resurrect what one judge called “the Constitution in Exile.” The term referred to a series of legal doctrines that have been dormant since the New Deal but which judges could use to dismantle the post–New Deal regulatory state, including economic regulations, health and safety laws, and environmental laws.
The named conspirators, along with myself, were Judge Douglas Ginsburg, Professor Richard Epstein, and Chip Mellor (Institute for Justice). Jeff’s current indictment no longer names them; this confirms my long-held suspicion that they are traitors.
Their defection looks like a set-back, as does the fact that since 2005, the post-New Deal regulatory state has exploded (along with federal spending and debts). The voters elected a president who made good on his promise to pursue that agenda and who, moreover, has appointed judges and justices who seem disinclined to stop, let alone “dismantle,” anything at all. The doctrines that might do so have remained dormant. All this, though, merely reflects my strategic judgment that my time had not yet come; I had to lull the country into complacency.
In this, I largely succeeded. After the 2005 Rosen expose, the “Constitution in Exile” was not heard of again—until this past month, when I appeared at a Yale conference on Jack Balkin’s Living Originalism. I had agreed to attend in the hope that Jack, who argues that the Constitution contains not one but two rights to abortion, might be receptive to my project of handing American democracy over entirely to the Supreme Court. (He declined.) Instead, I had to fake my way through a panel debate ranging from judicial review in India and Germany to Wittgenstein. I faked good (I thought), but no luck:
Michael Greve of the American Enterprise Institute, another leader of the Exile movement, took aim at what he called the philosophy of “naïve originalism,” championed during the 1980s by conservatives like Edwin Meese. Naïve originalism, Greve stated bluntly, was framed as a methodology of restraint—a way of preventing judges from second-guessing democratic decisions. But more recently, Greve went on, certain legal conservatives—especially in the business community—had lost faith in judicial restraint and become more interested in protecting their economic interests through judicial activism. “Naïve originalism has nothing to offer people worried about government overreach and that includes the business community,” Greve said. Pro-business conservatives, he argued, were now more interested in embracing constitutional doctrines that could “discipline a waywardpolitics”—even if that means rule by judges. It was a stunning admission, and it signals that, whether or not the health care mandate falls, we can expect future constitutional challenges to financial regulations, such as the Dodd-Frank law, and to the rest of the post–New Deal regulatory state.
I had hoped to maintain my cover by stating “bluntly” what everyone knows; by making “stunning” admissions that are shared by the entire country (our politics is broken); and by warmly endorsing judicial restraint positions (e.g., Justice Scalia’s opposition to the introduction of international law fantasies into our domestic order). The videotape of the panel shows my fiendish cleverness. You won’t hear me saying anything about “rule by judges” (except by way of despair over the public’s acceptance of the practice): my associates have erased that compromising statement. Thanks to Jeff Rosen’s fearless reporting, the truth survives.
My Alleged Co-Conspirators: Harmless, Innocent and Unqualified
Jeff Rosen has also found out and now named my recently acquired co-conspirators. Randy Barnett, for example. Rosen’s indictment contravenes the Yale conference’s consensus, reported here, that Randy Barnett does not actually exist but was invented by the New York Times. I can and should clear this up: besides the Times’s made-up Georgetown Law Barnett, there is the real Exile Barnett, who sells mortgage insurance in Dale City, VA and resents Obamacare’s discriminatory mandate for health but not housing (Motto: “Everyone needs a mortgage some day.”).
The other named conspirators are judges Janice Rogers Brown, David Sentelle, and Thomas Griffith, all of the D.C. Circuit. In an April 13 decision, a panel consisting of those judges unanimously, and easily, upheld a New Deal-era scheme that raises the price of milk for consumers.
But one of the D.C. Circuit’s judges, Janice Rogers Brown, issued a remarkable opinion in the case, making clear that she vehemently disagreed with the majority’s presumptions.
The milk regulation, she wrote, “reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers.” She added that the courts “have been negotiating the terms of surrender since the 1930s.” Brown went on to denounce landmark Supreme Court decisions issued after Franklin Roosevelt’s Court-packing plan, lamenting that “the Court abdicated its constitutional duty to protect economic rights completely.” And she decried “the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.”
Brown’s concurrence was joined by Judge David Sentelle, another pillar of the Constitution in Exile movement. But more surprising was the separate concurrence of Judge Thomas Griffith, considered to be the most moderate conservative on the panel. Griffith refused to join his colleague’s “spirited criticism of the Supreme Court’s long-standing approach to claims of conomic liberty,” but not because he disagreed with it—he said he was “by no means unsympathetic to their criticism.” Instead, he was demurring only because he was “reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.”
Judge Griffith has confided to me that he could not be “unsympathetic” to a criticism of laws that even Jeff Rosen will not defend as rational or consumer-friendly—although his clerks did unearth a laudatory pamphlet by the Brandeis-Nebbia Institute. (Motto: “Milk. It’s so good for you, it should be way more expensive.”). Judge Griffith is no movement material.
As for Judge Brown, she and I have occasionally met in dark corners of Washington steakhouses. Usually, to avoid detection, we dress as Lillian Hellman and Yosemite Sam respectively. However, the judge has been awful at disguises:
Janice Rogers Brown has long been sympathetic to these [Constitution in Exile] goals. A daughter of sharecroppers, she denounced the New Deal in a series of speeches before her confirmation to the D.C. Circuit in 2005. She called 1937—the year the Supreme Court began to uphold the New Deal—“the triumph of our own socialist revolution.” In the same speech, she argued that “protection of property was a major casualty of the revolution of 1937.”
She somehow escaped detection by the Senate Judiciary Committee; but
Then, in her April 13  opinion, she dramatically unmasked herself.
And so did I, in that Yale talk a few days later. It’s over.
Confiteor: the idea of building a constitutional revolution with judges and academics may have been a tactical error on my part. Folks whose entire output consists of the written word will eventually be found out. Thanks to Jeff Rosen’s sleuthing, they (we) have been, and not a moment too soon:
This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. … [B]y voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor.
Don’t do it, Chief. The Exile movement is dead. Epstein et al. are gone, I’m recanting, and Judge Brown has been outed; it’s just you and the mortgage guy in Dale City. Take it from Rosen:
We’ve seen this script play out before, and it didn’t end well for the Court.