The phrase "Constitution in Exile" gets thrown about a good bit lately (32,000+ Google hits for it), often pejoratively, and if instinct serves it is likely to come up during the confirmation hearings on Alito.

Thus it seems worthy to point people to the actual source of the phrase, a learned discussion of the non-delegation doctrine by Judge Douglas Ginsburg in the wonk mag Regulation, in 1996. The actual quote:

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.

The question whether the jurisprudence of the New Deal went too far in glorifying govenmental authority, ignoring fundamental problems such as Public Choice and Prisoner's Dilemma, is a very live one, as the reaction to Kelo indicates, and much in need of debate.

So read Ginsburg's thoughtful piece.

posted by James DeLong @ 9:55 AM | General

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