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Is the New Deal Under Attack?
The American Constitution Society’s blog this week has a good summary of commentary on conservative attempts to restore a “Constitution-in-Exile.”The term was first coined in 1995 by Federal Appeals Court Judge (and President Reagan’s rejected Supreme Court nominee) Douglas Ginsburg to describe a conservative reading of the Constitution banished in the years after the Court reversed course in the 1930s and began upholding New Deal legislation. Judge Ginsburg lamented:
“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 ACS blog discusses New Republic Legal Affairs Editor Jeffrey Rosen’s pre-election warning that, instead of revisiting Roe v. Wade, a second Bush administration is more likely to focus on judges who will reinvigorate doctrines that “were largely abandoned in the 1930s to allow the federal government broad discretion to regulate health, safety, the environment, and the workplace.”
Along similar lines, a piece on Salon.com by Sidney Blumenthal sees the Administration’s Social Security proposals as part and parcel of an overall plan to undermine the New Deal. He argues that, in addition to packing the court with ultra-conservative judges committed to the Constitution-in-Exile, “now Bush has launched an assault on the social contract in earnest, seeking to blast away at its cornerstone, Social Security, which disburses pensions to the elderly and payments to the disabled.”