The "Constitution in Exile" as a Problem for Legal Theory

Article excerpt

ABSTRACT

How does one defend a constitutional theory that's out of the mainstream? Critics of originalism, for example, have described it as a nefarious "Constitution in Exile, " a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This objection is overblown. Legal rules don't always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. (We can have social agreement that we're bound by the Internal Revenue Code, even though we don't all agree on--let alone remember--everything the Code requires.) So long as we share certain conventions that lead to unconventional conclusions, out-of-the-mainstream theorists can accurately claim to describe our own legal system rather than a foreign or invented one that they hope to impose. The theorists' job is to identify shared premises and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions.

In any case, if this kind of objection did have force, it wouldn't be a problem just for out-of the-mainstream theories like originalism. Virtually no modern legal theory accepts every change in constitutional practice as actually changing the Constitution. Because history moves at its own pace, any theory with meaningful conditions for legal change will often be violated in practice. In other words, any Constitution worth its salt will spend a good bit of time in exile.

INTRODUCTION

Constitutional practice changes. That much is obvious. Right answers on turn-of-the-century law school exams turned into wrong answers by 1937, or 1973, or 2000, or 2014. (1) Vastly different rules and understandings came to be accepted as constitutional law, before each was overthrown and forced to make way for the next. This endless progression of constitutional practices is a "brute fact"--maybe " the brute fact"--"of constitutional history and constitutional interpretation." (2)

What Americans seem to accept in practice, though, they largely reject in theory. Most Americans, including most lawyers, don't think we've repeatedly overhauled the Constitution in the last hundred-odd years. We may understand it differently, but we haven't actually changed it. We don't live in a Fifth Republic, the way the French do: we still use the same old text, with only twenty-seven short additions, and call that our fundamental law.

What should we make of this gulf between theory and practice? One response is to say, with the practicing lawyer, "so much the worse for theory." The courts will decide whatever they decide. There's no use theorizing about it, except to try to predict what they'll do next; and these "prophecies of what the courts will do in fact ... are what [we] mean by the law." (3) A more common response, at least among academics, is to go back to the drawing board, constructing ever more complex legal theories to force the scatterplot of history into a nice constitutional line.

This Article is about a third response: to look at the gulf between theory and practice and say, "so much the worse for practice." Nowadays this view is commonly attributed to originalists--followers, allegedly, of a nefarious "Constitution in Exile," waiting in their subterranean lairs to subdue the populace and abolish the New Deal. (4) Though the "Constitution in Exile" movement may be largely mythical, (5) the idea that constitutional practice may have gone seriously wrong is real enough, and can be found on both sides of the political aisle. Mark Graber, a progressive writing in what he called the "dark times" under George W. …

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