Constitutional Expatriates

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Jeffrey Rosen has a long article about libertarian legal theories in yesterday's New York Times Magazine. David Bernstein subjects it to some withering criticism here and here.

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  1. If the right believed in the “Constitution in Exile” enough to appoint originalist judges, they would probably apply their Constitution in Exile ideology to their legislative and executive doings. I note that the right has expanded federal power from their perches in these branches and conclude that the movement,if it exists, does so only on the fringes. In fact, I may be the only adherent in my whole neighborhood. Being out of power, I simply pretend that the Constitution means what the founders intended and cluck ruefully when the criminal gang in power abuses its power.

  2. Actually, from what I read, the article makes a point of the difference between advocates of ‘Constituion in Exile’, and the political right. Illustrated by the schism that created the Institute for Justice. I think this also parrallels the creation of the Libertarian Party from the Republican Party, after the nomination of Nixon.

    I just hope that C.I.E. proves more viable than the L.P. has. I.J. and other C.I.E. organizations certainly seem to have, so far, accomplished more than the L.P., notable as a club for thinking, drinking and mouthing off, has so far

  3. This Times piece and the brouhaha surrounding it — including the long-winded diatribes at Volokh — are really just about semantics.

    The “Constitution in Exile movement” is just another way to describe the conservative and libertarian movements (as they exist in theory, at any rate). What’s everybody so worked up about? I thought it was a given that libertarians and conservatives don’t like how the Constitution has been alternately warped and neglected during the past century.

    Far as I’m concerned, “Constitution in Exile” is a fine characterization of the mindset that drives the conservative/libertarian movement.

    The Volokh folks seem to have launched into some mad defensive posture … “No, no, no! How dare you describe our side like this?!” I don’t get it. Does anyone really dispute that our side wants the Constitution back — from exile or wherever else it’s been since the late 19th century?

  4. Stand up and proudly proclaim the CIE, as I do. Just don’t look for any judicial appointees that ascribe to the CIE.

    What the writers seem to be worried about is the conflation of CIE thinking with wingnuttery, as if there were some GOP cabal to restore limited government. This conflation causes CIE enthusiasts of the simpleminded variety to vote GOP and turns would be adherents off by mistaken association with sinister neo-con elements. It is important to maintian the distinction as tomwright does above.

  5. While I’m admittedly ignorant about the history and sectarian battles within the libertarian right, my reaction is the same as Semolina’s. The Times piece, while clearly written by someone opposed to the movement he’s writing about, seems fair and sufficiently thorough about the timeline and the movement’s ideas and goals to convey the essentials to a general audience.

    Bernstein seems upset about nomenclature, semantics and the fact that the article wasn’t written by a true believer. I think I also caughtt a whiff of the perennial Libertarian, Marxist and Maoist irritation that the aggrieved’s particular sect (the only one that’s right) is being lumped in with those nutjobs.

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