Exiled on Main Street
Two weeks ago now the Diane Rehm show spent its first hour reviewing a little known political movement: The Judiciary and the "Constitution in Exile"
Tuesday April 19, 2005 (10:00) the guests were Michael Greve, John G.
Searle Scholar at the American Enterprise Institute and director of
AEI's Federalism Project, and Jeffrey Rosen, author and associate
professor at the George Washington University Law School and legal
affairs editor of "The New Republic". The immediate antecendent for
this seems to have be Rosen's article The Unregulated Offensive
in the New York Times Magazine the previous Sunday. I found myself
listening closely, and have thought about it a great deal since. Its
the unrequited undergraduated government and politics schooling I
have. I mentioned this broadcast to my sister, Ann, the next
week-end. She said that she had the Richard Epstein mentioned
prominently in Jeffery Rosen's article as a professor in law school. He
spent the entire semester lecturing on his notion of contracts before
noting in the final week that there was a federal statute in the US
Code that covered this to different effect. If they were going to
actually practice law out in the 50 states they might need to know it.
She added that he was one of the smartest people she has ever known.
What is it about these tele-right types that strikes people as
intelligent, or profound?
On the Constitution in Exile
as a movement they, well Michael Greve, claim they are not a movement
all. Just a loose collection of law professors. However; the phrase was
coined by Douglas Ginsburg, an advocate of the chief tenets of contract
and property that mark this as a ideological movement. He has used this
phrase repeatedly. In addition there is an agenda here - to advance one
or more of these adherents to the Supreme Court. That can be read
between the lines of even this much public conversation. If there is an
agenda; there is a movement (as section iii of the Rosen article
documents). There are two issues : constructuralism, and the expansion
of Federal Governments use of the commerce clause, this group dogs.
They circle these issues like accident lawyers at a car wreck.
The idea of strict construing of the constitution is a
perennial issue. Justice Scalia never tires of lecturing about it. To
me it represents a 19th or even 18th century vision of reason. One
untainted by any notion of psychology and unconscious bias. A non
accounting of problems of exegesis: we might have knowledge of what a
two hundred thirty year old document from the dawn of our nation means
to us today. We cannot know what it meant to those in the room who
drafted it out of their days and experience. We do not live in their
world, nor they in ours. Strict constructors offer no explanation of
the omnipotent understanding of the group document that is the
constitution they claim, that could not be (and judging from the
Federalist papers and concurrent opposing editorials was not) possessed
even by those who where there. It is all a pretense on every level and
carries a strong whiff of inearnestness. They see what they want to see
and avoid what they don't. "It has been said that these powers ought to
be construed strictly. But why ought they to be so construed? Is there
one sentence in the Constitution which gives countenance to this rule?"
Justice Marshall in Gibbons v. Ogden (1824), Landmark Supreme Court Cases
Marshall was describing The Commerce Clause power (Article 1
section 8 clause 3). In Gibbons v. Ogden Marshall is trying to answer
what is commerce: is it goods trade only, or other activities including
transport leading to transfer and sale. Later notions of this
debate revolved around the concepts direct and indirect impact of a
commerce related activity. The Gibbons decision established that
business and commercial activity in practice was commerce and could be
regulated among the several states. Within a mere 113 years this led to
the Constitution in Exile movement's main maladjustment: National Labor
Relations Board v. Jones and Laughlin Steel Corp. (1937). This
case marked a break from the immediate past in two ways. Congress
tried to outlaw yellow dog contracts. This is a contract imposed on
workers demanding no union activity in return for employment in 1898.
Lochner v. New York (1905) and more specifically Adair v. United States
(1908) held this void - denial of liberty of contract under the Due
Process clause ""no "possible legal or logical connection...between an
employee's membership in a union and the carrying on of interstate
commerce". There is the notion here that the individual worker even
with-out collective bargaining is somehow always on even footing with a
firm of whatever size in his employment contract and terms. To not
insist this is always true strikes the Constitution in Exile crowd as
an illegitimate extraction of private property from the business
interest.
There was also had a series of cases notably Hammer v
Dagenhart (1918) which did not expand federal powers under the commerce
clause when obviously set for social policy purposes, in this latter
case child labor laws. In 1934 congress strengthened the railway labor
act 1926 to again outlaw yellow dog contracts. This time the principle
was upheld in a series of minor cases in 1937 and comprehensively by
NLRB v. Jones and Laughlin Steel "the judicial revolution of
1937" [Cushman, Cases in Constitutional Law, 6th ed]
The Constitution in Exile movement seeks to overturn this
glorious revolution, to which in its stead they desire to bring their
comedy of restoration. Bringing back the days of Yellow Dog contracts
and everything else.There is no shortages of targets: ---""many
decisions of the Federal Communications Commission, the Environmental
Protection Agency, the Occupational Safety and Health Administration
and possibly the National Labor Relations Board would be
unconstitutional", independent regulatory commissions, Some
applications of the Endangered Species Act and Clean Water Act would be
struck down as beyond Congress's commerce power.""(Cass Sunstein as
quoted by Rosen in the NYT article)
Significantly in that same article Michael Greve is quoted
"Judicial activism will have to be deployed," he said. "It's plain that
the idea of judicial deference was a dead end for conservatives from
the get-go." I don't recall he repeated this on the Diane Rehm
show. Also; though, from Richard A Epstein, an article titled
Undue Restraint - Why judicial activism has its place. (National
review. 52, no. 25, (2000): 26)
At the end of all this for all their posturing and bluff of
inalienable natural law rights to property from which nearly any
government activity is a taking. [Morris Cohen in the essay Property
and Sovreignity proposed that private rights - property rights
inevitably lead to - become - public or political rights. Coercive
power over individuals. Any right absolutely granted becomes a
portion of state power]. They come before public opinion or more
rather a subset of the public, walking a wide berth around congress to
approach the bench with confidences of a Pareto-like optimality, a
sweet cornucopia labeled private from which magic issues, in one hand,
and a terrible vision of deprivation, the destruction of the individual
in society in the other. This is a quiet shifting of essential
arguments from intrinsic right to more pragmatic possessory even
instrumental justifications. There is in their catspaw creep an
implicit admission that the instant of social compact is every instant.
Property is agreement and the Government of the people is its
instrument.
3:06:58 AM  ;;
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