Jack Balkin responds to the Constitution in Exile piece by Jeff Jamison at ACSBlog.
I think the notion that conservatives want to restore a “Constitution in Exile” is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations– particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.
Many have accused the “Federalism Five” as being judicial activists, but, like Balkin, I would argue that they are not steering the country to the far right. As I explained in a comment over at ACSBlog,
One could make the argument that there isn’t really a shift to the right in terms of jurisprudence, but rather that [the legislation involved in] Lopez and Morrison were so egregious, it was merely the court saying that there has to be a wall somewhere.
While yes the term interstate commerce in a modern economy means “virtually everything,” it does not necessarily mean “everything.” No one, not even Rehnquist, would suggest a return to the Schechter v. U. S. definition of interstate commerce. However, there does have to be a reasonable limit. Its not “radical” or “activist” to establish at least some sort of limit. The connection between guns in schools and interstate commerce is so attenuated that it is not at all “activist” to say that the connection does not exist(at least doesn’t exist firmly enough to warrant federal jurisdiction).
UPDATE: Arnold P. over at Demagogue discusses the Constitution in Exile in regards to Roe v. Wade.
I’m pro-choice as a political matter. And I appreciate the consequences that overturning Roe could have on many people’s lives, particularly those of young women without means. But much as I oppose the criminalization of abortion and the many ingenious ways conservative legislatures have found to make obtaining an abortion practically difficult, financially draining, and emotionally abusive, I don’t think judges should be intruding into the political struggle over the issue–even judges who share my views about the wisdom and morality of abortion bans.