Orin Kerr wonders why the New York Times commissioned a front page story, illustrated by some of the most sinister-looking photographs that I have ever seen in a non-lunatic publication, for its Sunday magazine about the non-existent “Constitution in Exile” movement. He hazards four tongue-in-cheek answers, but the question is worth a serious look.
Someone who reads the Times without much prior knowledge of constitutional theory will come away “knowing” that a large number of right-of-center lawyers favor radical change in the way in which the U.S. Constitution is interpreted, that they largely agree on the direction in which that change should go, that they hide their revolutionary purposes, slyly avoiding citations of “extremists” like Richard Epstein even while insinuating their ideas into court decisions and works of purported legal scholarship, that they have an ominous, unacknowledged influence over both the conservative wing of the Supreme Court and the Bush Administration, and that President Bush’s nominees for judgeships are likely to adhere to their philosophy. Of these propositions only the first is to some extent true. The article implies the rest more than it directly states them. The author would doubtless deny that he is doing anything more than describing the views of selection of interesting figures in contemporary law. He doesn’t provide a Clinton White House-style chart of conspiratorial connections, nor does he say that the “Constitution in Exile” school operates under cover to shape Justice Department policies.
Nonetheless, the inferences are there to be drawn, and Times editors, if not the law school professor author, know that a readership that finds former economist Paul Krugman credible will draw them. This fictitious conspiracy and the moniker “Constitution in Exile” have been floating around left-wing circles for a few years. Now they will become conventional wisdom among a larger public. Leftist legal theorist Cass Sunstein (“who calls himself a moderate”, avers the Times) has a book on the subject coming out soon.
The “Constitution in Exile” construct jibes beautifully with the presumption that right wingers in general, and the Bush Administration in particular, have secret motives for their actions. That presumption sustains paranoia about the domination of foreign policy by a neoconservative cabal. The “Constitution in Exile” is a domestic policy counterpart, along with the alleged plot to convert America into a theocracy (not quite the objective of guys like Randy Barnett, but, should the paranoia peddlers notice the incongruity, they will reckon that it just shows how widespread and deceitful the conspiracy is).
Conservatives regularly make fun of Left’s recently found taste for the political occult. If ridicule alone would temper the propensity to connect invented dots in unlikely patterns, organs like the New York Times would by now have consigned perpetrators to the same cellar as the John Birch Society. Instead, “discoveries” seem to be multiplying, and hardly any commentator on the Left any longer accepts that anyone on the Right expounds his real opinions in public. One half of our country’s political discourse is veering more and more toward the model of the Middle East, where the true causes of all effects are presumed to be covert, and reasoned argument is all but impossible. There could hardly be a more deplorable trend, nor, I fear, one harder to reverse.
Further reading: Michael S. Greve, “Liberals in Exile”
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