NYT Magazine: The Unregulated Offensive

[Tandalayo_Scheisskopf]

Excerpt:

But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court.


Critics of the movement note, with some anxiety, that it has no shortage of targets. 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.


Any movement with such ambitious goals must be patient and take the long view about its prospects for success. Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. ''I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice,'' he says. ''We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there.''

http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html?adxnnl=1&pagewanted=2&adxnnlx=1113710473-pIdZ4eXdXeeQ2gZc9xE/6g

[Jim Sagle]

1. Who'd golf with such a worthless piece of shit?

:puke:

[Tandalayo_Scheisskopf]

2. Don't dismiss this out of hand.

These guys get an audience in some powerful places. We don't.

Read and learn. Be prepared. There are so many philosophical undercurrents out there and even the wackiest seem to be getting noticed and heard these days.

10 years ago, the only places you would have heard this stuff is at a militia meeting. Now, it's in The Times. Is it any wonder that The National Alliance is coming out of the woodwork?

[agincourt]

3. When conservatism projectile vomited up in the early '80s,

everybody got it wrong. They thought it was a throwback to the 1950s, when really it was the 1850s that was the endgame.

[DBoon]

4. yeah, they'd repeal the 13th and 14th amendments if they had the chance

Seriously, I expect to hear serious advocacy for slavery soon.

[OneBlueSky]

5. so . . . would "originalists" declare that corporations are, indeed . . .

not persons? . . . it sure ain't in the Constitution . . .

[housewolf]

6. This is a very iimportant article

It's enlightening and appalling, very educational.


Nominated

[Rose Siding]

7. Guess it's way too radical to suggest impeaching Thomas

for LYING to Congress...

snip>
...Thomas tried to assure Biden that he was interested in ideas like Epstein's only as a matter of ''political theory'' and that he would not actually implement them as a Supreme Court justice.

{Epsteins's theory "calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt's New Deal"}

After Thomas joined the Supreme Court, Biden's warnings seemed prescient. In 1995, echoes of Epstein's ideas could be clearly heard in one of Thomas's opinions......The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government's power. He assailed his liberal colleagues for characterizing ''the first 150 years of this Court's case law as a 'wrong turn.''' He continued, ''If anything, the 'wrong turn' was the Court's dramatic departure in the 1930's from a century and a half of precedent.''