“Constitution in Exile” a red herring…


I’ve been trying to follow the Orin Kerr/David Bernstein smackdown of that Jeffrey Rosen article over the weekend, and I have to say, I just don’t get it. Fine, so maybe the “Constitution in Exile” movement isn’t really a “movement”. Who cares!? The core issue at stake here seems to be whether or not there are in fact judges who, if elected to the Supreme Court, will go about actively chipping away at post-New Deal era constitutional doctrine. Is Bush planning to nominate justices who want to gut minimum wage laws, for instance, yes or no? Yes? Or no? The answer here is mostly independent of whether or not such judges are all connected to some shadowy conspiracy being run out of AEI or not, and it’s very unrelated to the question of whether Cass Sunstein is a “moderate” or not.

UPDATE: Okay, I cede the floor to the gentleman from the Decemberist.

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