Constitution in Exile

From dKosopedia

The Constitution in Exile is a controversial term that refers to provisions of the United States Constitution whose interpretation by the Supreme Court have changed since roughly the 1930s, and which have not been strictly enforced, such as the interstate commerce clause.

Origins and meaning

According to an article by Legal Affairs Editor Jeffrey Rosen in The New Republic, "The phrase comes from a 1995 article by Douglas Howard Ginsburg, a federal appeals court judge on the D.C. Circuit, whom Ronald Reagan unsuccessfully nominated to the Supreme Court after the Senate rejected Bork."[1]

According to the same article, reinstating provisions "exiled" from the Constitution would mean "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal. These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government" to act on these issues. Rosen considers this to be a form of judicial activism, though his opponents would argue that it was merely reversing decades of accumulated activism.

Rosen argues that one of the most important provisions of the Constitution in Exile is limitations on the interstate commerce clause, which were undermined by the Supreme Court's "expansive interpretation of Congress's power to regulate interstate commerce... extended to include any activities that might affect commerce indirectly" during the New Deal. "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 1930's. In controversial 5-4 rulings [primarily, United States v. Lopez and United States v. Morrison], 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." (A later decision in Gonzales v. Raich, in which Justices Antonin Scalia and Anthony Kennedy - integral parts of the Lopez and Morrison majorities - joined, seemed to show the limits of the court's willingness to curtail commerce clause power).[2]

Most jurists who are identified with the Constitution in Exile call themselves Strict constructionists or Originalists. The latter group has shown considerable inclination to excommunicate Justice Scalia following his Raich concurrence[3]. Rosen argues that their opinions are judicial activism and "contemptuous of Congress."