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Waiting for Lochner

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When it comes to a sense of self-importance, you can't match the self-proclaimed "serious" conservative legal theorists. You know, the ones who ran Harriet Miers off the field.

So, it turns out that you can really get under their skin by accusing them of attempting to reinstate the "Constitution in Exile." Jesse Jackson's Tuesday op-ed against SCOTUS nominee Samuel Alito referred to the CIE phrase and produced vitriolic reaction from reactionary law professors Todd Zywicki and Ann Althouse. Jackson pointed to some scary things about Alito and accused him of being willing to legislate from the bench to strike down progressive legislation, but what cheesed off the professors was Jackson's reference to Alito as part of "a new reaction proclaiming that the real Constitution has been "in exile" since the 1930s." See Volokh and Althouse. They really go crazy here.

Why is this phrase so annoying to the right and why is it, therefore, so much fun to use? As Originalist Randy Barnett put it in an on-line debate on the subject, it makes originalists sound "like Russian nobility with their shadow governments futilely planning their return to power from irrelevant London tea rooms." Exactly.

Barnett, who hates the CIE phrase, wrote a book called "Restoring the Lost Constitution -- The Presumption of Liberty." I cannot explain the distinction.

The CIE folks are particularly galled that in that one of them, D.C. Circuit Judge Douglas Ginsburg (more about marijuana later), coined the phrase and it was then hijacked by CIE opponents in a rare inspired piece of left-wing branding. Jeffrey Rosen has popularized the phrase in two articles, first in the New Republic and then in the New York Times Magazine. In the latter article, Rosen tries to distinguish the true Constitution in Exile people from the more "moderate" originalists, like Justice Scalia, who reject the degree of activism necessary to really roll back the clock, but I am unconvinced that it is anything more than a question of degree. They all want to go back to an era of less regulation and less governmental assistance to the disadvantaged; some just want to go back further and quicker than others.

Rosen uncovers several proponents of the CIE and gets them to say things right out of The Daily Show. Richard Epstein, a University of Chicago law professor described by Rosen as the "intellectual guru" of the CIE movement, believes such things as zoning, workers compensation laws and progressive taxation are unconstitutional takings. Minimum wage laws and environmental laws also apparently are not allowed under the CIE. The CIE grail is Lochner v. New York, a 1905 case that struck down a law setting a maximum number of hours for bakers as interfering with the bakers' freedom to contract. This all changed in 1937 and since then, the Court has largely restrained itself from interfering in Congress's regulation of economic matters.

Far from wanting to avoid "legislating from the bench," the CIE crowd wants the Court to strike down federal regulations. Rosen points out that from 1995 through 2003, the Rehnquist Court struck down 33 federal laws as unconstitutional, which he says is a record. The best-known battles were over the commerce clause, which once appeared to give the federal government power over almost anything. In 1995 and 2000, the Court ruled that federal laws regulating guns in school and violence against women, respectively, were unconstitutional, as their subjects did not have enough to do with interstate commerce.

This movement ended at least temporarily this year, when the defenders of California's medical marijuana law argued that the medicinal use of marijuana has nothing to do with interstate commerce. Based on the specious distinction that the marijuana ban was part of an overall federal anti-drug program, Justice Scalia changed sides (along with Justice Kennedy) and ruled that federal control of all drugs was constitutional. Justice Thomas did not change sides, further cementing his reputation as the Court's true hedonist.

So, if you find yourself having to converse with a conservative lawyer, throw a CIE bomb --- and offer them some tea and biscuits.

Revision: I put quotes around "moderate" to indicate irony.