The Constitution in Exile

Over at ACSBlog, Jeff Jamison gives a good summary of concerns that the right wing of the Republican Party would like to restore a pre-New Deal "Constitution in Exile." Sanford Levinson and I argued back in 2001 that we were in the midst of a constitutional revolution, which would be extended or curtailed depending on succeeding Supreme Court appointments. I think the notion that conservatives want to restore a "Constitution in Exile" is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations-- particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.