Jeffrey Rosen, law professor at George Washington University, has written an article for New York Times Magazine today covering the so-called “Constitution in Exile” movement. The term was coined by federal judge David Ginsburg, who was referring to legal doctrines that strictly limited state and federal powers before the New Deal. I suggest before you go any farther, that you actually read the piece.
More generally, the term now seems to refer to various libertarian-leaning groups who have been challenging unconstitutional laws in the courts.
Needless to say, the statists are not going to take this lying down. Blogger Jeffrey Jamison has written a scathing criticism over at ACSBlog. But the most outspoken opponent of the Constitution in Exile is Cass Sunstein, law professor at the University of Chicago and author of The Second Bill of Rights: FDR’S Unfinished Revolution and Why We Need It More Than Ever, who has written a new book, Fundamentally Wrong, criticizing the Constitution in Exile movement. He previously wrote an article for Washington Monthly criticizing the movement.
On the other side of the fence is Sunstein’s colleague, law professor Richard A. Epstein, author of Takings: Private Property and the Power of Eminent Domain, who argues that all people have certain inherent rights, such as the right to own property. Epstein argues that whenever government takes property from someone outright, or passes regulations that reduce the value of his property, that he must be fairly compensated for the taking, or it is unconstitutional.
Statists are right to worry that the Constitution in Exile movement will roll back some of their “progress” over the last 70 years. If you can call it progress in the first place. Mark Schmitt, for instance, worries that “the Constitution in Exile judges, just like the Social Security privatizers, want to roll back the clock a lot futher than 1973 or 1961.”
There’s just one big problem.
The Constitution in Exile movement doesn’t exist.
What does exist is a number of conservative/libertarian thinkers who have been saying the same things they have always been saying: FDR’s New Deal programs are unconstitutional; taking of private property without just compensation is unconstitutional.
When you’re a statist trying to get yet another socialist program or fascist, unconstitutional law passed, it helps a lot to paint your opponents with whatever brush you can find. In this case, it’s the “radical right-wing conspiracy to take over the courts and throw out all of our progress” brush. Sure, if you call taking 6.2% of my wages and offering me nothing in return “progress.”
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S. Newton
Oct 22, 2006
The State of Texas, as you may be aware, has proposed a transportation corridor across the state, beginning at Laredo and proceding northward to Oklahoma. We are located in Cooke County, Texas, which is alaternative No. 5 among the several corridors proposed under the Trans-Texas Corridor (TTC-35). If Cooke County is taken as the northerly culmination in the Texas corridor, we will be forced to move from our home. Eminent domain takings reimburse owners at the fair market value. This is an unfair reimbursement under today’s real estate market values. We purchased our home, as many other retirees, in 1986 and retired to a home size with which we feel comfortable. I believe that property owners forced from their homes by eminent domain takings should be reimbursed for the takings in an amount equal to the amount that it will cost them to replace the taken home with the same square footage and with the same quality as the home which they are forced to leave. The cost of new construction, and even of buying a replacement home in our vicinity will be anywhere from $115.00 to $150.00 per square foot (I have verified this with our local realtors. That is way beyond what we will be able to afford if we are offered onoly the fair market value of the property. Fair market value should be based upon a WILLING seller–not upon a sellfer FORCED to sell their homestead. What is your opinion of forcing the government to compensate owners for what it will cost to replace their property taken by eminent domain? I have contacted our representatives but have met with the usual “run-around” response which completely ignored responding direct to my suggestion. The planned corridor will be built and run by Cintra (a Spanish organizatoin) which will receive the toll charges from the corridor.
SJN
S. Newton
Oct 22, 2006
An additional comment to my first mesage concerning the Trans-Texas Corridor (TTC-35). I have visited the Federal Highway Administration web site (FHWA) and the Joint Working Committee (JWC) web site (a working committee between Mexico and the U.S. that was formed after the NAFTA agreement). There appears to be a link between the 1994 JWC agreement (it was replaced by a new agreement in 2002) between the FHWA, the JWC, and the Trans-Texas Corridor (TTC-35) proposal. Our governor was reluctant to reveal the nature of the contract between Cintra (the Spanish organization that will operate and collect the tolls from the corridor) but was finally forced to release the information. Further, there appears to be a connection between the fact that the second largest bank in Spain (and which owns the largest bank in Mexico )recently purchased two Texas banks, one of which has over 200 branes and which Mexican residents in the U.S. use to channel money to Mexico.
The fact that a Cintra employee was appointed by our Governor Perry to work in our state government, the fact that Gov. Perry signed the corridor contract with Cintra, and the fact that since the contract was signed, the ex-Cintra employee is once again an employee of Cintra has been recently brought out in the DAllas Morning News.
Gary Conner
Feb 21, 2007
Dear S. Newton:
As you may be aware, on March 2, 2007 (our anniversary of the date of signing the Texas Declaration of Independence) there will be a huge ANTI TTC rally at the Capitol, which will also be protesting the NAIS anti-4th Amendment program that Perry is all for. Heck as mad as a lot of folks in Texas are, who knows, there may be as many as ten thousand show up.
Especially after Rick Perry recently decided to begin legislating by strictly utilizing Executive Fiat. If he doesn’t get impeached, there will be a lot of State Reps voted out in two years, I can ASSURE you of that. I talk to a lot of Republicans in my County, and even his staunchest supporters that I have known, are saying he overstepped his Constitutional boundaries. In fact, it is in a legal brief letter from one of our most learned retired Judges, which was sent to the AG the other day, outlining for that guy, the method in which Perry ordered the Commissioner to illegally conduct a sham proceeding, for a predetermined outcome, which is a violation of law.
So it should be fun. Cause we are sure tired of his Neo-Con attitude.
Additionally, on March 1st, the day previous, there will be a Senate hearing at 8:30 at the Capitol extension Auditorium.
(They had to hold it there, because several thousand are supposed to show for that, to voice their opposition to the Unconstitutionality of the TTC, and the “Public=Private” partnership so called “aspect”.
Hopefully, we can save you from the Trans Texas Corridor’s path to tyranny.
G. Conner