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. Originalists, those who seek to interpret the Constitution according to its "original intent" or "original meaning" alone, argue that "the constitution in exile" is a straw man. Jump to: navigation, search The Constitution of the United States is the supreme law of the United States of America. ... Jump to: navigation, search Seal of the Supreme Court The Supreme Court of the United States is the highest court in the United States of America. ... Jump to: navigation, search 1930 is a common year starting on Wednesday. ... Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, empowers the United States Congress To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. ... The Framers sign the Constitution in 1788. ... Jump to: navigation, search A straw man or man of straw is a dummy in the shape of a human created by stuffing straw into clothes. ...

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 Ginsburg, a federal appeals court judge in Washington, D.C., whom Ronald Reagan unsuccessfully nominated to the Supreme Court after the Senate rejected Bork."[1] Jump to: navigation, search Cover from the August 30th, 2004 issue. ... Jump to: navigation, search 1995 (MCMXCV) was a common year starting on Sunday of the Gregorian calendar. ... Douglas H. Ginsburg (born May 25, 1946) is the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. ... In the court system of a state or of a subordinate regional entity, an appeals court is a court of second instance where a party to a case on which judgment has been entered can ask to have their case reheard if they suspect an error of law, fact, or... Jump to: navigation, search Washington, D.C. is the capital city of the United States of America. ... Jump to: navigation, search Ronald Wilson Reagan, (February 6, 1911 – June 5, 2004) was the 40th President of the United States (1981–1989) and the 33rd Governor of California (1967–1975). ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... Jump to: navigation, search Seal of the Senate The United States Senate is one of the two chambers of the Congress of the United States, the other being the House of Representatives. ... Jump to: navigation, search Robert Bork Robert Heron Bork (born March 1, 1927 in Pittsburgh, Pennsylvania) is a conservative American legal scholar who advocates the judicial philosophy of originalism. ...

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. Jump to: navigation, search Powers exercised, whether delegated or usurped, by a federal government; in the United States, powers exercised by the federal government of the United States. ... Jump to: navigation, search Simply put, the term regulatory state refers broadly to the power and influence weilded by the federal government of the United States, the numerous agencies in particular, since World War II which some citizens view as a continuing threat to liberty. ... Jump to: navigation, search The New Deal was President Franklin D. Roosevelts legislative agenda for rescuing the United States from the Great Depression. ... Jump to: navigation, search To discriminate is to make a distinction. ... Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ... Jump to: navigation, search This article needs a complete rewrite for the reasons listed on the talk page. ...

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 '30s. 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] Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, empowers the United States Congress To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. ... Jump to: navigation, search The New Deal was President Franklin D. Roosevelts legislative agenda for rescuing the United States from the Great Depression. ... Events and trends Technology Jet engine invented Science Nuclear fission discovered by Otto Hahn, Lise Meitner and Fritz Strassmann Pluto, the ninth planet from the Sun, is discovered by Clyde Tombaugh British biologist Arthur Tansley coins term ecosystem War, peace and politics Socialists proclaim The death of Capitalism Rise to... Jump to: navigation, search United States v. ... United States v. ... Gonzales v. ... Jump to: navigation, search Justice Antonin Scalia Justice Antonin Scalia (born March 11, 1936) (Sometimes known by the nickname Nino) has been a U.S. Supreme Court Associate Justice since 1986. ... Jump to: navigation, search Justice Anthony Kennedy For other people of the same name, see Anthony Kennedy (disambiguation). ...

Most jurists who are identified with the Constitution in Exile call themselves Strict constructionists or Originalists. Strict constructionism is a philosophy of judicial interpretation and legal philosophy that holds to the meanings of words and phrases as used when they were written down. ... Jump to: navigation, search In the context of U.S. Constitutional interpretation, originalism is a family of theories which share the starting point that a Constitution (or statute) does not evolve in meaning, but rather, has a fixed and knowable meaning, which should be adhered to by Judges. ...

Controversy surrounding the term

Law professors David Bernstein and Orin Kerr, among others, have criticized Rosen and Cass Sunstein, another liberal opponent of the "Constitution in Exile," for using the term, which is now used almost exclusively as a pejorative by liberals. Kerr writes: "there is no evidence that a conservative has used the phrase "Constitution in Exile" outside of a single reference in a 1995 book review." Bernstein writes that Sunstein and Rosen have invented a nonexistent cabal as a straw man: David Bernstein is a professor at the George Mason University School of Law. ... Orin Kerr is a professor at George Washington University Law School. ... Cass R. Sunstein (b. ... Jump to: navigation, search A straw man or man of straw is a dummy in the shape of a human created by stuffing straw into clothes. ...

I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase... the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves."

Sunstein has responded that Randy Barnett's book, Restoring the Lost Constitution, Richard Epstein's constitutional work, and opinions expressed by Clarence Thomas and Antonin Scalia all support "restoring the lost constitution, or what Judge Ginsburg calls the Constitution in Exile," so his use of the term is justified. Randy E. Barnett is a lawyer, law professor at Boston University, and legal theorist in the United States, noted for his libertarian theory of law and his work on contract theory and constitutional law and theory. ... Restoring the Lost Constitution: The Presumption of Liberty is a book on the US constitution by Randy Barnett, where he outlines his theory of constitutional legitimacy, interpretation and construction. ... Richard Epstein is currently a professor of law at the University of Chicago Law School. ... Jump to: navigation, search Justice Clarence Thomas Justice Clarence Thomas (born June 23, 1948) has been an Associate Justice of the Supreme Court of the United States since 1991. ... Jump to: navigation, search Justice Antonin Scalia Justice Antonin Scalia (born March 11, 1936) (Sometimes known by the nickname Nino) has been a U.S. Supreme Court Associate Justice since 1986. ...

The arguments from this section by Sunstein, Kerr, and Bernstein can all be viewed on this page of The Volokh Conspiracy weblog. The Volokh Conspiracy is a weblog named after UCLA School of Law professor Eugene Volokh, its founder and one of its contributors. ...