Clarence Thomas Joins Constitution In Exile Movement

by Chris Bowers, Wed Jun 01, 2005 at 10:16:02 AM EDT

By now, you might have heard of the "Constitution in Exile" movement. In short, it is a term invented by Douglas Ginsberg (the Regan Supreme Court nominee rejected for smoking doobie) and popularized by Jay Rosen to describe a radical conservative interpretation of the Establishment, Interstate Commerce and Spending clauses of the Constitution that would make render federal job safety, civil rights, environmental and pension programs unconstitutional. Back in April, Jeff Rosen had a cover piece in the New York Times Magazine about the "Constitution in Exile" movement.: Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called "Fundamentally Wrong." As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power." In what Sunstein described as the "extreme nightmare scenario," the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized. Now, the Volokh Conspiracy claims that there is no Constitution in Exile Movement, or at least that those who support the movement have no real power. However, if this were true, it would make the following decision by Clarence Thomas difficult to understand: The Supreme Court has unanimously rejected a facial Establishment Clause challenge to section 3 of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a)(1)-(2), which applies to individuals in institutions. Justice Thomas joined the opinion of the Court, but wrote separately to express his view that the Establishment Clause does not apply to states and that RLUIPA likely exceeds Congress's power under the Spending and Commerce Clauses, positions with quite radical implications.(...)

Justice Thomas agreed that RLUIPA was constitutional "under our modern Establishment Clause case law," but reiterated his belief that the Establishment Clause is not incorporated into the Fourteenth Amendment and "'is best understood as a federalism provision' that 'protects state establishments from federal interference.'" That is, states can establish religion and Congress cannot preclude them from doing so.

Thomas also commented that RLIUPA "may well exceed Congress' authority under either the Spending Clause or the Commerce Clause." He cited his concurrence in last year's decision in Sabri v. United States, 541 U.S. 600 (2004), in which insisted that Spending Clause legislation must be reviewed under a higher standard than mere rationality to ensure that there is an obvious, direct condition between spending conditions and the spending itself. Such an approach could doom not only RLIUPA but also other measures that Congress has adopted to prohibit recipients of federal spending from discriminating against the elderly, disabled and other groups, as well as possibly rights under the Nursing Home Reform Act.

Thomas also quoted from his concurrence in United States v. Lopez, 514 U.S. 549, 587 (1995), where he indicated his view that the power to regulate commerce extends only to trade, not manufacturing or other commercial ventures. Again, that position has repercussions far beyond protections for religious practice. His approach would likely doom the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as wells as minimum wage and maximum hour laws and labor and environmental laws.

This is the Constitution in Exile movement, whether it calls itself that or not, and it is sitting on the Supreme Court. I don't give a rat's ass that such judges would rather call themselves "strict constitutionists." It's not like conservatives are kind enough to always use the terms we like to use when describing ourselves, and refrain from using terms against us that they invented. And, oh yeah, it was a term that was invented by Douglas Ginsberg.

These people are coming to the bench. Some of them slipped through in the deal with the Gang of 14. This is the dream of the Texas Republican Party coming to life. This is the legal arm of contemporary conservatism.

Tags: Ideology (all tags)

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The Neo-cons also do not exist

Just ask Jonah Goldberg. The vast right wing conspiracy is a figment of your imagination. The CATO Institute is really a pet store and The Heritage Foundation is a retirement home for history buffs.

by Gary Boatwright 2005-06-01 10:23AM | 0 recs

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Thomas & the Establishment Clause

What follows is a piece of a LTE I wrote, published in the Miami Herald right before the '04 election. In it, Thomas opines that the Establishment Clause exists for the purpose of PROTECTING State establishment of official religions:

Elk Grove

Justice Thomas built on Justice Scalia's Lee dissenting opinion in his own dissent in Elk Grove Unified School District v. Newdow, No. 02-1624. Argued March 24, 2004--Decided June 14, 2004, the recent Pledge of Allegiance "Under God" case. He introduced his opinion stating "I would take this opportunity to begin the process of rethinking the Establishment Clause." He wrote that he accepted the Free Exercise Clause as applied against the States through the Fourteenth Amendment, but "the Establishment Clause is another matter," and "it makes little sense to incorporate the Establishment Clause." Justice Thomas opined that the Establishment Clause protects only the States, and not individual rights. "[T]he Establishment Clause," he wrote, "is best understood as a federalism provision--it protects state establishments from federal interference but does not protect any individual rights."

Justice Thomas went on to discuss exactly what he meant by "state establishments," describing official endorsement of a particular religion throughout State governmental authority. He began where Justice Scalia left off, discussing legal coercion, and finding (inconsistently with his thesis, that the Establishment Clause simply does not apply to States) that coercion through force of law and threat of penalty remained prohibited. However, he went on to state, there were other ways for a State to establish a religion without coercion. He wrote "[i]t is also conceivable that a government could 'establish' a religion by imbuing it with governmental authority, ... or by delegating its civic authority to a group chosen according to a religious criterion." He did not state what authority could be imbued, or what civic authority could be delegated. However, it is reasonable to anticipate that, at a minimum, such an official establishment could prohibit public employment or contracting by members of other religions. Other state prerogatives, including marriage, divorce, and even civil courts (many of the American colonies had ecclesiastical courts), could be included.

This opinion is disturbing for two reasons. First, it encourages official public endorsement of, and delegation of authority to, an individual religion. Second, and even more pernicious, the internal illogic hints that Justice Thomas' limitation against coercion is a temporary public sop, promising religion without Inquisition. However, if his opinion is accepted at face value, the Establishment Clause simply does not apply to states, and therefore contains no limitations. Individuals might remain protected by the Free Exercise Clause, indeed that might have been Justice Thomas' point, but his opinion as written does not state that.

For context, if you are still interested, here is Scalia's dissenting opinion from which Thomas' opinion grows:

Lee v. Weisman

In a dissenting opinion in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), Justice Scalia castigated the majority of the Court for deciding its opinion in a graduation ceremony prayer case on the psychology of coercion rather than on history. The majority decision found that a graduation prayer was coercive, as students attending graduation were required to stand and either join the prayer or remain silent. The Court considered psychological evidence that this created a coercive atmosphere violative of the Establishment Clause. ...

Having first ridiculed the majority's decision, Justice Scalia turned next to the Establishment Clause. "The Establishment Clause," he wrote, "was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference)." The import of the last statement might well be hidden by its location in a parenthetical statement, but it can not be underestimated, for it is the heart of Justice Scalia's opinion. His final position is that States are free to establish official religions. Further, he would only limit such establishment to prohibit 'actual coercion,' "acts backed by threat of penalty" by the State government. In other words, short of statutory punishment, such as imprisonment or fine, a State could establish an official religion, and delegate to it official state functions.

Justice Scalia went on, rejecting even Jesus' admonition against public prayer, arguing on behalf of public and institutional prayer. He wrote "[c]hurch and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged, entirely in secret, like pornography, in the privacy of one's own room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals...." While, on its face, this argument has validity, combined with the establishment of an official State religion it legitimizes public devotion, not at individual churches or synagogues, but at public institutions and events.

What does all this mean? It means States can establish official religions, can delegate State authority to them and perhaps can even require a religious oath to take State public office. There is an argument the Constitution prohibits this, but the language is iffy, and if we reach this point the Scalias of the world will be doing the interpreting:

Article VI:

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

It is far to easy to state "under the United States" applies only to federal posts, particularly given the fact that States had religious tests at the time of the Constitution. Remember, Scalia and company are luddites, insisting our Founding Fathers, the greatest progressives of their age, intended to create a static document and a static nation.

by dhonig 2005-06-01 10:58AM | 0 recs

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Thomas Thinks for Himself!?!?

It's that impossible, isn't he precluded from any independent mental activity?

But seriously, everyone is missing the boat on the Constitution in Exile clap-trap. The way federalism works, (as outlined by the Tenth Amendment) anything that the federal government does not have sway over...the states retain. This is important, because Thomas and Scalia and the other strict constructionist in theory do not object to the states regulating and managing those responsibilites shed by the federal government.

But...the coke-addled fantasy of the Bushen-reich is to have the federal government preempt the states on hundreds of types of regulation. It's to make, on paper, the President incredibly powerful. By destroying the major sources of revenue for the bureaucracy however, the actual ability of the federal government would be highly diminished. And it would mean that no one in government could hold most businesses accountable.

by risenmessiah 2005-06-01 11:36AM | 0 recs

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Re: Thomas Thinks for Himself!?!?

I heard from a court observer on NPR that it is Scalia who is cheating off of Thomas's paper, not the other way around.

Scalia is a loudmouth, and Thomas rather quiet, thus the confusion.

by wayward 2005-06-01 07:13PM | 0 recs

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Re: Thomas Thinks for Himself!?!?

It would not surprise me if that were true. My intial comment was a joke though. There is reason to believe the Federalist Society types made a concerted effort to marshall the most extreme conservative federal clerks to Anthony Kennedy though. That apparently he's the real sheep among the Justices. Well, her and O'Connor.

by risenmessiah 2005-06-02 12:17AM | 0 recs

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Re: Thomas Thinks for Himself!?!?

Kennedy is somewhat libertarian. He is proud of writing the decision for Lawrence v. Texas, which overturned state sodomy laws and infuriated conservative.

O'Connor is a split-the-difference moderate and usually the 5 in any 5-4 decision. A great example of that is the Affirmative Action cases of Gratz v. Bollenger and Grutter v. Bollenger. Her "swing" set the law on Affirmative Action, and IMHO was a very well thought out compromise.

by wayward 2005-06-03 07:24PM | 0 recs

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They are NOT Conservatives

Chris wrote: This is the legal arm of contemporary conservatism.

These people are NOT conservatives -- they are radical right wingers, trying to overturn the US government as it exists today.

To call them conservatives gives them a validation they do not deserve. Calling them Radical Right Wingers is far closer to the truth.

Don't let them hide behind the mantle of conservatism!

by ck 2005-06-01 12:33PM | 0 recs

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This is also part of the Unitary Executive theory

The right wingnuts have been developing a theory of the Imperial Presidency called the "Unitary Executive." In a nutshell, the theory is that the President is the sole arbiter and decision maker for all Executive and Adminstrative Agencies. Because Administrative Agencies are created and authorized by Congress to exert Executive Authority, the President has the sole power to appoint and fire staff and determine the policy of those agencies.

The judicial predicate for their theory is that Humphrey's Executor was wrongly decided because it gave too much oversight over Administrative agencies to Congress.

They base their theory on a strained interpretation of the "vesting clause" of the Constitution and a few imaginative distinctions between minor wording differences in the way the power of the Judiciary, Congress and the Executive is "vested" by the Constitution.

I'm not sure if they have delineated a limit to the power of the Unitary Executive, but conceivably in additon to denying Congress oversight authority over spending and policy of Administrative agencies, it could include a President who had equal power with the courts to declare laws unconstitutional and Congress would have no authority to appoint an independent counsel to investigate the Executive and no authority to over-ride a veto.

You can read a summary of a paper by:

CHRISTOPHER S. YOO
Vanderbilt University - School of Law
STEVEN G. CALABRESI
Northwestern University - School of Law
LAURENCE NEE
U.S. District Court for the Eastern District of California

at this website:

Vanderbilt Public Law Research Paper No. 04-11; Northwestern Public Law Research Paper No. 04-10
Notre Dame Law Review, 2004

Abstract:
Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. To date, however, a complete assessment of the historical record has yet to appear.

This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1889 and 1945, beginning with the Administration of Benjamin Harrison, ending with the Administration of Franklin Delano Roosevelt, and paying particular attention to FDR's failed attempt to reorganized the executive branch. The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.
[End Abstract]

I don't know about the other two, but Calebrisi is a huge name in legal circles. I used to give Volokh credit for being a principled conservative legal scholar. There is no way he is not familiar with Calebrisi's work and Scalia's decisions that Thomas has built on.

I don't know why Volokh is lying, but he is.

by Gary Boatwright 2005-06-01 12:40PM | 0 recs

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Not Jay Rosen

Jeff Rosen.

by David Weman 2005-06-01 01:47PM | 0 recs

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Establishment Clause

This stuff is horrifying! They certainly never taught this when I went to law school!

Seriously, other than the fights over abortion, can anyone think of anything more divisive than a battle over what to make the state religion? The alliance between the Southern Baptists and Catholics, such as it is, would fall apart immediately. And reducing "free exercise" to not having ones religion outlawed?

If we think mainstream voters are put off by Congress dealing with Terry Schiavo and not gasoline prices or health care, imagine when the state legislature is spending its time deciding on the official prayer and hymnal, instead of education.

If it weren't for the carnage this would cause, and the damage from dispensing with regulatory agencies so we could all choke and die as free individuals, I would almost say let them try!

by Mimikatz 2005-06-01 02:43PM | 0 recs

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Re: Establishment Clause

Catholics want to keep the First Amendment. (They gave up on the whole wanting to be the established religion thing with Vatican II) That's why they get into alliances with fundies who don't really like them. As long as the First Amendment is around, the Catholics are safe, and as long as Catholics support the First Amendment, the First Amendment is safe.

If you notice, it is not the Catholics who call for prayer in schools (they have their own schools) or post the Ten Commandments wherever they can, or want to ban evolution, or want to promote doctrine. Instead, the Catholic side of the religious right wants to promote legislation on morality, specifically the Catholic interpretation of morality. This is how abortion became the glue that holds the religious right together.

This can be seen in the one case where the Catholic right opposed the fundie right - the trial of Roy Moore. Conservative Catholic A.G. Bill Pryor tried Moore during his impeachment. While fundies tried to make a martyr out of Moore for standing up for the Bible, Catholics could care less about the stone tablets and pointed out how Pryor (whose federal court nomination was being filibustered) stood up for the law. In other words, fundies wanted the public recognition of the Bible, right-wing Catholics wanted a federal judge who supported the Catholic interpretation of morality.

by wayward 2005-06-01 07:24PM | 0 recs

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If You Just Open The Constitution......

....And look at what it says, really (I am no lawyer, but I can read), there is nothing in there that gives any court the jurisdiction to interpret the Constitution. Clearly, the Constitution is to be interpreted by the Congress itself, and not by any of the judges that it appoints.

by blues 2005-06-02 04:05AM | 0 recs

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Re: If You Just Open The Constitution......

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution ...

by dhonig 2005-06-02 04:25AM | 0 recs

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Re: If You Just Open The Constitution......

Yeah -- the judicial power, which is controlled by the Congress, which makes the rules. The part about "equity" is, well "quaint."

by blues 2005-06-02 03:58PM | 0 recs

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Re: If You Just Open The Constitution......

Just as an example, Congress could rule that all matters of law must be decided by juries. The courts currently claim the the juries only get to decide about "facts," and the judges decide the "law." Congress could easily change that.

by blues 2005-06-02 04:02PM | 0 recs

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Re: If You Just Open The Constitution......

Please provide the basis for this conclusion. Article III, section 2, only gives Congress authority to create regulations related to appellate jurisdiction in certain cases.

by dhonig 2005-06-02 08:38PM | 0 recs

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Re: If You Just Open The Constitution......

The fact is, the document seems, overall, to have very little to say about the courts, and says quite a bit about Congress. It does not give justices any authority to interpret anything, not even the law. Only the courts themselves can do this. I think that Congress could easily declare that juries must decide the law. Why would unelected justices, who are merely officers appointed by the Congress, have that much power? They do not represent the people in any reasonably direct way. Juries do, after all, represent the people. I could call it a principle of democracy. How can the justices do anything at all that affects the rights of the people without the consent of juries?

by blues 2005-06-03 02:21AM | 0 recs

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Re: If You Just Open The Constitution......

I think it would be a surprise to many to find that Justices are "merely officers appointed by the Congress." Particularly given that such a statement is just plain wrong.

As for your theories about juries, they are based upon erroneous presumptions about the role of judges and juries, roles that existed at the time of the writing of the Constitution.

The Founding Fathers intentionally made the federal bench a life time appointment to insulate judges from the vagaries of political opinion. Your theories would render the very concept of justice itself a mere product of the thought of the day. As such, it would render both the words of the Constitution and the clear intent of the framers without meaning. Such interpretation, to those with even a modicum of legal education, is indefensible.

I realize you are promulgating pet theories for which you bravely confess you have little basis or knowledge, and have attempted to therefore treat you with the same respect I might for a pro se litigant. However, at some point you should attempt to support your positions with something other than more positions, or lose the privilege of ignorance.

by dhonig 2005-06-03 05:41AM | 0 recs

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Re: If You Just Open The Constitution......

Well, no disrespect but, not really. There are many actions in equity in courts across the nation, even today.

by dhonig 2005-06-02 08:37PM | 0 recs

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Constitution in Exile

I have added a page on the topic of "The Constitution in Exile" at http://www.constitution.org/cons/exile/exile.htm . I also have a blog at http://constitutionalism.blogspot.com that you may enjoy visiting. Comments are welcome.

by Jon Roland 2005-09-04 10:36PM | 0 recs