Constitutions in Exile

A central question being debated in the press and in blogosphere is whether the Republican party hopes to restore the Constitution-in-exile. Part of the debate is over who uses the phrase "Constitution-in-exile" or, as the phrase Jack Balkin first coined, "shadow constitution." Who cares. The more serious point is that a great many conservatives would like to change official constitutional meanings in areas ranging from federalism to abortion to property rights to the commerce power. But even here "Constitution-in-exile" is a misnomer. The correct expression is "Constitutions-in-exile." Randy Barnett’s lost constitution is quite different from William Rehnquist’s or the average Christian conservative’s constitution. The real issue for the future is which conservative constitution in exile is the Bush administration going to push for. My guess at the end of the day is that it will be more libertarian than social conservative, that social conservatives will be successful only when, as in the Boy Scout and voucher cases, they can tie religious worldviews to antistate themes. When in doubt in politics, bet on the elite.

One response to this conservative movement is the development of alternative shadow constitutions or progressive constitutions-in-exile. But contrary to Orin Kerr’s recent blog, I think this is not the most valuable exercise for progressives at the moment. The law review essay he quotes points out that lots of alternative progressive shadow constitutions exist and no need exists for refinement until progressives actually take power. The world changes rapidly and what seem progressive (or conservative) positions at some times rapidly change with events and windows of constitutional opportunity. Robert Bork provides a good object lesson here. Most people consider his 1971 piece to be the main conservative constitution-in-exile, but the decisions Bork criticized (free speech, birth control) are central to present conservative constitutionalism, whereas he had nothing to say about the revival of the 11th Amendment and takings clause. The better rethinking for progressives to consider why we are losing elections.

Here some rethinking of abortion and the sexual revolution may be in order, but for different reasons that Jack Balkin suggests in a different post. The main problem with abortion and gay rights in constitutional theory and progressive politics is they seem to have some tendency to push the rights of the poor to the side. The real problem with overruling Roe may be that the pro-choice candidates who then do better in elections will not talk at all about welfare or the rights of the less affluent Americans. Progressives need not abandon their commitment to pro-choice policies and gay rights, but they need to speak as loudly for the rights of the less fortunate. Otherwise we are likely to have a polity where one party fights to the death for tax cuts while caving on abortion, while the other party fights to the death for abortion rights while caving on tax cuts.