The Constitution in Exile

Jeffrey Rosen's piece for New York Times Magazine (you have to register and log in) on the libertarian jurisprudence of Richard Epstein, Randy Barnett, and others. Some of these "Constitution in Exile" theorists are candidates for judicial appointments.

While I would applaud the policy outcomes from libertarian jurists, I'd prefer candidates closer to Scalia's literalist/federalist approach. Epstein would not only roll back the New Deal (good) by judicial decree (bad), but seems to take an overly broad interpretation of our economic liberty under the 14th Amendment vis a vis the powers of state governments.

This is not a paradox or contradiction within conservative jurisprudence, as Rosen says, but rather, two different schools of thought. But I agree with Rosen that:

If the lessons of the past 60 years teach us anything, when judges try to short-circuit intensely contested democratic debates, from the New Deal cases to Roe v. Wade, they may provoke a fierce political backlash that sets back the movement they are trying to advance. In this sense, even if the Constitution in Exile movement manages to transform the courts before it has transformed the country, it may find that it has won less than it hoped.