ORIGINALIST? STRICT CONSTRUCTIONIST?
IT'S THE "CONSTITUTION IN EXILE" CROWD!

This is pretty damned funny. From the Huffington Post courtesy of Eschaton:

When it comes to a sense of self-importance, you can’t match the self-proclaimed “serious” conservative legal theorists. You know, the ones who ran Harriet Meirs off the field.

So, it turns out that you can really get under their skin by accusing them of attempting to reinstate the “Constitution in Exile.” Jesse Jackson’s Tuesday op-ed against SCOTUS nominee Samuel Alito referred to the CIE phrase and produced vitriolic reaction from reactionary law professors Todd Zywicki and Ann Althouse. Jackson pointed to some scary things about Alito and accused him of being willing to legislate from the bench to strike down progressive legislation, but what cheesed off the professors was Jackson’s reference to Alito as part of “a new reaction proclaiming that the real Constitution has been "in exile" since the 1930s.” See Volokh and Althouse.

Why is this phrase so annoying to the right and why is it, therefore, so much fun to use? As Originalist Randy Barnett put it in an on-line debate on the subject, it makes originalists sound “like Russian nobility with their shadow governments futilely planning their return to power from irrelevant London tea rooms.” Exactly.

Barnett, who hates the CIE phrase, wrote a book called “Restoring the Lost Constitution-The Presumption of Liberty.” I cannot explain the distinction.

Click here for the rest.

God, that cracks me up: "Constitution in Exile." I'm particularly fond of the satire here because the right wing knows as well as I do that all their theories about "originialism" are straight-up bullshit. It's pretty clear that conservatives love "judicial activisim" as much as liberals do--if Gore v Bush didn't prove that to the world, nothing will. It's just that conservatives believe that activist judges should rule only in favor of conservative causes. What "strict constructionism" amounts to, then, is a squirrelly argument that attempts to make "wrong" a century's worth of American social progress--"you see, it's against the law, and we can't do anything that's against the law." It's a lot like beating somebody in a game of Scrabble who cannot accept defeat; he pores over the most arcane sections of the rules until he can find something vague enough to rant and rave about until people start to take him seriously. It doesn't have anything to do with the rules. For the sore loser, it's about winning, and if he has to resort to stupid-ass sophistry in order to get the job done, then that's okay. Of course, if somebody else tries to use the same rule interpretation for next week's game, then all bets are off. Like I said, it's not about the rules; it's about winning.

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