By now, you might have heard of the "Constitution in Exile" movement. In short, it is a term invented by Douglas Ginsberg (the Regan Supreme Court nominee rejected for smoking doobie) and popularized by Jay Rosen to describe a radical conservative interpretation of the Establishment, Interstate Commerce and Spending clauses of the Constitution that would make render federal job safety, civil rights, environmental and pension programs unconstitutional. Back in April, Jeff Rosen had
a cover piece in the New York Times Magazine about the "Constitution in Exile" movement.:
Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called "Fundamentally Wrong." As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that "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. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power." In what Sunstein described as the "extreme nightmare scenario," the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.
Now,
the Volokh Conspiracy claims that there is no Constitution in Exile Movement, or at least that those who support the movement have no real power. However, if this were true, it would make
the following decision by Clarence Thomas difficult to understand:
The Supreme Court has unanimously rejected a facial Establishment Clause challenge to section 3 of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a)(1)-(2), which applies to individuals in institutions. Justice Thomas joined the opinion of the Court, but wrote separately to express his view that the Establishment Clause does not apply to states and that RLUIPA likely exceeds Congress's power under the Spending and Commerce Clauses, positions with quite radical implications.(...)
Justice Thomas agreed that RLUIPA was constitutional "under our modern Establishment Clause case law," but reiterated his belief that the Establishment Clause is not incorporated into the Fourteenth Amendment and "'is best understood as a federalism provision' that 'protects state establishments from federal interference.'" That is, states can establish religion and Congress cannot preclude them from doing so.
Thomas also commented that RLIUPA "may well exceed Congress' authority under either the Spending Clause or the Commerce Clause." He cited his concurrence in last year's decision in Sabri v. United States, 541 U.S. 600 (2004), in which insisted that Spending Clause legislation must be reviewed under a higher standard than mere rationality to ensure that there is an obvious, direct condition between spending conditions and the spending itself. Such an approach could doom not only RLIUPA but also other measures that Congress has adopted to prohibit recipients of federal spending from discriminating against the elderly, disabled and other groups, as well as possibly rights under the Nursing Home Reform Act.
Thomas also quoted from his concurrence in United States v. Lopez, 514 U.S. 549, 587 (1995), where he indicated his view that the power to regulate commerce extends only to trade, not manufacturing or other commercial ventures. Again, that position has repercussions far beyond protections for religious practice. His approach would likely doom the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as wells as minimum wage and maximum hour laws and labor and environmental laws.
This is the Constitution in Exile movement, whether it calls itself that or not, and it is sitting on the Supreme Court. I don't give a rat's ass that such judges would rather call themselves "strict constitutionists." It's not like conservatives are kind enough to always use the terms we like to use when describing ourselves, and refrain from using terms against us that they invented. And, oh yeah, it was a term that was invented by Douglas Ginsberg.
These people are coming to the bench. Some of them slipped through in the deal with the Gang of 14. This is the dream of the Texas Republican Party coming to life. This is the legal arm of contemporary conservatism.
