The Constitution in Exile

In recent years, the Supreme Court has issued a number of significant decisions limiting the scope of federal authority and invigorating a doctrine of state sovereignty, including several in the last Term of the Court. It has also decided important cases regarding the protection of private property from excessive government regulation, the antidiscrimination provisions of the 5th and 14th Amendments and the privileges and immunities provision of the latter amendment, as well as the scope of personal privacy rights, religious freedom and freedom of association.

Some observers have seen resemblance between aspects of this Court's jurisprudence and judicial positions in the era prior to 1937, using that year to mark a break within the preceding era, in which the Court interpreted the due process clause, the commerce clause and other Constitutional provisions to place more restrictions on government authority. Pieces of that earlier jurisprudence fit within an idealized Constitution in Exile, a name given to a body of constitutional doctrine which includes a muscular nondelegation doctrine, well defined limits on the scope of federal power, adequate protections of property rights, latitude for the recognition of religious practices in public life, and respect for the autonomy of states and local communities to govern themselves.

Are we witnessing the emergence of the Constitution in Exile? Whether or not the Court is returning to some features of pre-1937 doctrine in recognizable ways, do the recent decisions portend a significant change in the course of Constitutional jurisprudence, or are they marginal adjustments to post-1937 positions? Do these recent developments forma coherent jurisprudential pattern, and are they sound? What social, cultural, intellectual or jurisprudential explanations best account for the fact that these changes, however described, are occurring now? These are among the critical questions to be examined at this conference.

Participants

Equal Protection, Privileges and Immunities

Kathyrn Abrams, Cornell

What kind of a human subject -- with what characteristics and subject to what kinds of influences -- has the Court has been willing to recognize when it adjudicates cases under the 14th Amendment. The legal subject acknowledged by the Court at the time of Lochner resembled the classical liberal subject: the Court refused to recognize the extent to which individuals were differentiated by social or economic power, and created a subject whose essential characteristics were universal rather than group-specific. Between the New Deal and the last decades of the twentieth century, this account was repeatedly challenged in ways that modified Fourteenth Amendment doctrine: by realism and critical legal theory, in the academic context, and by legal interventions from the Brandeis brief to race-conscious remedies. Yet, in the last ten or fifteen years, the judicial tendency to abstract from power differentials and group-based experience has re-asserted itself, in the Court's insistence that group-based characteristics are not important determinants of human perception, and that state efforts to classify individuals according to group membership must be regarded as equal protection violations.

The Unenumerated Constitution

Jed Rubenfeld, Yale

The right to privacy, given substance in Roe v. Wade, has received enormous criticism from defenders of the Constitution in Exile, based on an insistence that judicially enforceable elements of Constitutional law must be textual. Recent decisions of the Supreme Court, however, continue to rely upon nontextual Constitutional doctrine. For example, the Federalism cases explicitly rest on a "residual conception of sovereignty" not found in the text. How significant is this non-textual element in the Court's recent constitutional jurisprudence, and what conclusions should be drawn from it?

The New Deal Constitution in Exile

William Forbath, Texas

In an exercise of self-conscious constitutional politics, the NewDealers sought and won broad support for an expansion of federal powers based on a new understanding of national citizenship and the duties of the national government. This Constitution, which encompassed rights to decent work and social provision, was never enacted by the New Deal Congresses. Bills embodying these new rights were on the table, with ample support from Northern Democrats and broad but bootless support from disenfranchised blacks and poor whites in the South. The South's congressional delegation engineered the defeat of these bills and justified its actions as a defense of the South's distinctive "racial civilization" and "labor system." Thus, the nation's betrayal of Reconstruction brought on the defeat and exile of key elements of the next great constitutional revolution. Those of us who defend the Congressional powers embodied in the New Deal Constitution may be obliged to make a good faith effort to enact the exiled rights of citizenship it promised.

Why Now?

Christopher Schroeder, Duke

Every Constitutional decision allocates power among and between various competitors for the right to decide: state vs. federal; executive vs. legislative vs. judicial; individual vs. government. Broadly speaking, recent decisions increase the power of state and local government at the expense of the federal. They are the result of a generation of growing distrust of the competence and authority of the federal government, as reflected in the burgeoning literature regarding the decline in trust. Examining this connection between constitutional doctrine and social context improves our understanding of the interrelationships between law, politics and society.

States Rights

Lynn Baker, Texas

Although there is a seeming consistency in the outcomes of the Court's recent commerce clause and 10th Amendment decisions (beginning with New York), these decisions do not display a consistent approach to (let alone a coherent theory of) the federal-state relationship. These outcomes are consistent, however, with a "functionalist originalism." The broader public opinion -- may well depend on the Court's willingness to explicitly adopt "functionalist originalism" in its approach to future federalism decisions

Federalism as an Autonomous Narrative

Vicki Jackson, Georgetown

Based on its understanding of the Constitution's commitment to maintaining reserved powers of the states -- powers not explicitly identified but impliedly assumed by framers and/or ratifiers -- Court in recent decisions has elaborated limitations on federal power beyond the explicit words of the text. To some extent, the narrative of federalism that has emerged in these decisions demonstrates striking parallels to the Court's federalism narrative of the late 19th and early 20th centuries. In other respects, the Court's awareness of the extratextual character of its interpretive activity may reflect a distinctively more contemporary attitude. Constitutional interpretation can present itself as more, or less, autonomous from other disciplines and other legal systems; when interpretation is avowedly extratextual, it might be thought that experience or views of other branches, other legal systems or even other disciplines would be helpful to the interpretive task. Yet in at least some of its federalism decisions, the Court has emphatically insisted on the irrelevance of such experience or views to the interpretive task at hand. To what extent is the Court developing a legal understanding of U.S. federalism that is autonomous from other disciplines and autonomous from the experience of other federal constitutional systems?

Keynote Address

Willian Van Alstyne