In today's New York Times magazine Jeffrey Rosen writes about the advocates of the "Constitution in Exile" who argue that "many of the laws underpinning the modern welfare state are unconstitutional." (Rosen had a shorter article on the same subject in the New Republic that I wrote about previously.) The greatest right of all, according to this bunch, are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional. The exile that this crowd criticizes began in 1937 when the Supreme Court finally stopped declaring Roosevelt's New Deal programs unconstitutional.

The implications of this movement are enormous and need to be remembered in the current struggles over Bush's court nominees:

Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called "Fundamentally Wrong." As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power." In what Sunstein described as the "extreme nightmare scenario," the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

Interestingly, with all of the criticism of "judicial activism" that one hears from Republicans these days, these guys are strongly in favor of judicial activism, bringing them into conflict with conservatives like Supreme Court Justice Antonin Scalia. One of the Exiles' chief advocates is University of Chicago professor Richard Epstein who insists:

that judges should be much more aggressive in protecting economic liberty. "There are many blatantly inappropriate statutes that cry out for a quick and easy kill," Epstein said, citing minimum-wage laws and other "legislative regulation of the economy." He excoriated the Supreme Court for refusing to strike these laws down. "One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent," he concluded. "Some movement in the direction of judicial activism is clearly indicated."

Their theory is based on the Constitution's "takings clause," which says that private property cannot be taken for public use "without just compensation." This is how it works. Suppose you you buy a piece of land intending to quintuple your investment by cutting down the trees, filling in the lake and building a shopping center. But that stupid Endangered Species Act gets in the way and stops yo in your tracks. According to the "takings" theory, the government has effectively taken from you the money you would have made by building the shopping center. Similarly, employers are having money stolen from them through unconstitutional minimum wage laws and occupational safety and health regulations that are "taking away" the profits they would have earned had these laws not interfered with their right to do whatever they want with their property.

Of course in the case of workplace safety, one might ask where the employer's property ends and the workers' property starts. For example, one might fear that they're only concerned with the owners' property, and any property taken away from workers, such as their lungs, doesn't factor in..

But no, say the exiled ones:

If they win -- if, years from now, the Constitution is brought back from its decades of arguable exile -- and federal environmental laws are struck down, the movement's loyalists do not expect the levels of air and water pollution to rise catastrophically. They are confident that local regulations and private contracts between businesses and neighbors will determine the pollution levels that each region demands. Nor do they expect vulnerable workers to be exploited in sweatshops if labor unions are weakened: they anticipate that entrepreneurial workers in a mobile economy will bargain for the working conditions that their talents deserve. Historic districts, as they see it, will not be eviscerated if zoning laws are scaled back, but they do imagine there will be fewer brownstones and more McMansions. In exchange for these trade-offs, they insist, individual liberty -- the indispensable guarantee of self-fulfillment and happiness -- would flourish far more extensively than it does today.

Ah, yes, "entrepreneurial workers in a mobile economy will bargain for the working conditions that their talents deserve." And the lamb will lie down with the lion. Believe it! Amen!

But wait, their Golden Age was "the era of Republican dominance in the United States from 1896 through the Roaring Twenties." Now I'm no historian, but weren't those the days of unregulated sweatshops, child labor, teeming tenements, young women jumping from burning buildings and Upton Sinclair's Jungle?

This "constitution in exile" stuff may have started out as a right-wing fantasy a couple of days ago, but Rosen warns us that the wolves are at the door, in the person(s) of Bush appellate court nominees William Pryor (the exiles' hero), Janice Rogers Brown (who called the New Deal "the triumph of our socialist revolution" and praised the court's invalidation of maximum -hour and minimum wage laws in the early 20th century) and William G. Myers III (advocate for mining interests).

Our one hope, Rosen points out (and the exile's agree) is the fact that all of these stinken' workplace and environmental laws are very popular with the public (as we saw in a recent poll).

What does all of this mean for the rapidly approaching national struggle over Bush's court nominations and the filibuster battle that will accompany it? It means that we need to make the American people know what's at stake -- nothing less than the advances ths society has made over the past 100 years. Not just the fate of legal abortion, but also the fate of workplace safety, the environment, minimum wage laws, consumer wage laws, the 8-hour day, child labor prohibitions -- in other words, issues that strike at the very heart of 20th and 21st century American values.

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