Constitution in Exile
Jeffrey Rosen has a lengthy piece in the New York Times Magazine arguing that Justice Clarence Thomas is part of a radical libertarian movement hoping to restore the Constitution to its pre-New Deal interpretation.
[During the 1991 Thomas confirmation] hearings, Joseph Biden, the Delaware Democrat who was chairman of the Senate Judiciary Committee, voiced a concern about Thomas’s judicial philosophy. In particular, he singled out a speech that Thomas gave in 1987 in which he expressed an affinity for the ideas of legal scholars like Richard A. Epstein. A law professor at the University of Chicago, Epstein was notorious in legal circles for his thesis that many of the laws underpinning the modern welfare state are unconstitutional. Thomas tried to assure Biden that he was interested in ideas like Epstein’s only as a matter of ”political theory” and that he would not actually implement them as a Supreme Court justice. […]
At the time, it was impossible to know whether Biden was right to worry. He was surely right, though, that Epstein was promoting a legal philosophy far more radical in its implications than anything entertained by Antonin Scalia, then, as now, the court’s most irascible conservative. As Epstein sees it, all individuals have certain inherent rights and liberties, including ”economic” liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation — when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes. In Epstein’s view, these libertarian freedoms are not only defensible as a matter of political philosophy but are also protected by the United States Constitution. Any government that violates them is, by his lights, repressive. One such government, in Epstein’s worldview, is our government. When Epstein gazes across America, he sees a nation in the chains of minimum-wage laws and zoning regulations. His theory calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt’s New Deal.
After Thomas joined the Supreme Court, Biden’s warnings seemed prescient. In 1995, echoes of Epstein’s ideas could be clearly heard in one of Thomas’s opinions. By a 5-4 majority in United States v. Lopez, the court struck down a federal law banning guns in school zones, arguing that the law fell outside Congress’s constitutional power to regulate interstate commerce. Lopez was a judicial landmark: it was the first time since the New Deal that the court had limited the power of the federal government on those grounds. Thomas, who sided with the majority, chose to write a separate opinion in which he suggested that even his conservative colleagues had not gone far enough. The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government’s power. He assailed his liberal colleagues for characterizing ”the first 150 years of this Court’s case law as a ‘wrong turn.”’ He continued, ”If anything, the ‘wrong turn’ was the Court’s dramatic departure in the 1930’s from a century and a half of precedent.”
Thomas did not cite Epstein directly in his opinion. But to anyone familiar with Epstein’s writings, the similarities were striking. Indeed, Thomas’s argument closely resembled one Epstein had made eight years earlier in ”The Proper Scope of the Commerce Power” in the Virginia Law Review — so closely, in fact, that Sanford Levinson, a liberal law professor at the University of Texas, accused Thomas of outright intellectual theft. (”The ordinary standards governing attribution of sources — the violation of which constitutes plagiarism — seem not to apply in Justice Thomas’s chambers,” Levinson wrote in the Texas Law Review.) Biden’s fear that Epstein’s ideas might be written into law had apparently been realized. And the fear would continue to be realized in other courts throughout the 90’s as a small but energetic set of lower-court judges, sympathetic to libertarian arguments, tried to strike down aspects of the Clean Water Act, the Endangered Species Act and other laws, challenging powers of the federal government that had come to be widely accepted during the second half of the 20th century.
Volokh conspirator David Bernstein argues, quite persuasively, that there is no such thing as a Constitution in exile movement, except in the minds of liberal conspiracy theorists.
I would argue though, that Epstein, and to the extent he agrees with him, Thomas are essentially right in their view of the Constitutionality of much of the post-New Deal regulatory state. Most of the early New Deal regulations were quite properly struck down by the Supreme Court. The idea that the federal government had the power to mandate huge public welfare programs was held to be far outside the scope of the Commerce Clause or any other conceivable constitutional delegation of power. Franklin Roosevelt intimidated the courts, though, with his plan to expand its membership and pack it with those sympathetic to his views. While that threat created a lot of uproar and was ultimately not enacted, the Court nonetheless got the message and soon reversed itself. By 1937, with NLRB v. Jones & Laughlin Steel, the Court created out of thin air an absurdly broad interpretation of the federal commerce power that opened the door not only for the New Deal but the modern regulatory state.