Thursday, October 13, 2005

The Volokh conspiracy is continuing to deny the existence of the constitution in exile movement, and I'm still confused at what they are up to. Here's what I commented:

Not too long after the legal affairs debate, the court decided Kelo, and the constitution in exile crowd awoke like a sleeping godzilla. When I wrote in 1994 about restoring state constitutional "free and equal elections" clauses, I pointed to IJ as a model. IJ wants to restore economic liberties under the P&I clause, undoing the slaughterhouse cases. Emerson was a major skirmish for the exiled constitution. Roberts indicates he's at least aware of Emerson, if a little confused about US v Miller. We don't know yet if Miers, or whoever Bush picks next if Miers doesn't get confirmed, are stealth members of the constitution in exile crowd, but it's at least possible. The rallying cry has been "strict construction." This suggest a return to the text, which for some parts of the constitution would be a return from exile. I don't understand the continued hostility toward the term, which is a not-too-far-off-the-mark label for the kind of strict constructionism Bush has been mentioning. For Bush, that might all be code for abortion, since the rules of engagement prevent him from openly discussiong abortion, but there's more to it than the single issue. Recently a hearing was held in Georgia over the new poll taxes. I'm hoping the judge looks to the text and enjoins the tax. The constitution isn't perfect, but it's better than what we've got now.

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