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Volokh Conspirators lambaste NYT piece on "Constitution in exile"

The Volokh Conspirators are busy debunking Jeffrey Rosen's Sunday New York Times article on what they agree is the mythical "Constitution in exile" movement that could affect the next Supreme Court nominee. Rosen, who is legal director for The New Republic and a George Washington University professor, wrote a dire interpretation of the conservative judicial agenda in the April 17 magazine. The piece is very interesting, appears well-researched, was well-fact-checked, according to Randy Barnett, but, the Conspirators say, it's bunk and Rosen's overreached. (Certainly there are many people on both sides of the discussion -- see here). So far, The VC has written these posts:

  • Accurate But Fake:
  • The NY Times and the Hunt For the "Constitution in Exile":
  • The Constitution-in-Exile Myth Returns:
  • Correcting Rosen's History:
  • Rosen on the "Constitution in Exile":
  • "Constitution in Exile" in NYT:
  • Cass Sunstein Responds to "Constitution in Exile" Post:
  • Is "The Constitution in Exile" A Myth?:
  • More than anything, I'm struck by the visual tone, one I've rarely seen in the NYT magazine. The piece reads and looks like a conspiracy theory written the very year (1937) to which Rosen's piece and the magazine headline indicate the Constitution-in-Exile crowd would like to revisit. This effect is assisted, certainly, by J. Edgar Hooveresque black-and-white photos of unsmiling suits like Richard Epstein, whose glare is accompanied by pull-quotes that say Epstein "has argued that his constitutional theory provides 'the recipe for striking down the New Deal.'"

    On the cover, the Constitution sits in a block of ice, above the headline: "Imagine that the interpretation of the Constitution was frozen in 1937. Imagine a country in which Social Security, job-safety laws and environmental protections were unconstitutional. Imagine judges longing for that. Imagine one of them as the next Supreme Court nominee. 'Toward an Unregulated America,' by Jeffrey Rosen"

    The Volokh Conspiracy is open to comments here.

    Posted by Product Team on April 18, 2005 at 02:25 PM | Permalink | TrackBack (0)


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