J. A Magill says:

While neither the founder nor the leading proponent of the so-called “Constitution in Exile” movement (those distinctions belonging respectively to Judges Douglas Ginsberg and Robert Bork), Judge Napolitano however does a fine job laying out the principle arguments of this conservative legal philosophy.

In a nut shell, the “Constitution in Exile” movement argues that the 20th century brought a shift in the balance of political power away from the states and towards the federal government. In particular, they condemn the increased regulatory authority granted to congress and to federal agencies during the New Deal through an expansive reading of the commerce clause. That this shift in power occurred remains undeniable; nor was it likely imagined by the Framers who existing in a largely agrarian 18th century economy could hardly imagine the realities and requirements of an industrial and post-industrial economy. However, the further argument, that such a division of power is inherently in conflict with the Constriction remains a more questionable proposition. While Napolitano does fine work offering the arguments for his position, he does far less to defend against the challenges of those who disagree with his school of thought.

Judge Napolitano sees the threat to constitution as coming from two quarters, the federal government vs. the citizenry and the federal government vs. the states. The former is novel, since Ginsberg, Bork and their peers tend to focus on the latter. Here Napolitano looks at the Patriot Act as an example of an overreaching government ignoring citizens’ rights to due process and judicial protection.

The latter position actually stands as the more controversial. For advocates of the Constitution in Exile movement, the Federal Government continues to encroach on State’s constitutional prerogatives upsetting a delicate federal balance envisioned by the Framers. As Napolitano writes, the Constitution is a compact among the states, not the individual citizens. While he sees this as clear, historians and philosophers can debate it all the way back to the framers. Indeed, the reason the Founding Fathers, led in this instance by Alexander Hamilton, insisted that the constitution be approved by State conventions rather than state legislatures was their opinion that the federal government derives its authority directly from the people. Moreover, Napolitano and his comrades seem to be fighting a battle on this front that was settled by the Civil War and 14th Amendment that followed in its wake, an amendment expressly stating that citizens of the United State as citizens of a federal government and not merely citizens of constituent states. While the Supreme Court in the immediate aftermath of the Civil War, as well as several members of the Renquist Court, may doubt the notion of Congressional supremecy, the drafters of the 14th Amendment understood the idea quite clearly.

Moreover, Napolitano and his ilk fail to understand the Constitution is at least as much a political document as it is a legal one. The Framers likely did not envision the idea of the FDA or federal standards for food safety, but that does not make such thinks per se alien to the Constitutional scheme. Moreover, such entities are not creations of some distant imperial federal overseer, but are enacted by the people working through their congressional representatives. Thus the Supreme Court in the New Deal failed to understand that they were protecting the prerogative of State actors and large cooperate interests, they were at the same time acting against the desires of the overwhelming majority of the citizenry. Men like Hamilton, desirous of a robust central government capable of binding the union and promoting integration, doubtless would have approved of the idea of a federal government setting national standards. Napolitano cringes at Congress also using its budgeting power to “encourage” states to enact unitary policies such as drinking ages, but what he considers blackmail stands more benignly as the efforts of political actors using the powers at their disposal to enact the ends they desire. The Framers, conceivers of a practical political scheme, may not have expected the post-industrial age, but they did understand politics and political actors.

Napolitano deserves credit for producing a work less polemical than those of Bork to explain the “Constitution in Exile” concept. However, the theory requires a more robust defense than the one offered here if it expects to gain greater currency. For those looking for an introduction, no other work stands as superior to this work, but that only goes so far.

Rating: 3 / 5

Cathy J. Taurine says:

If you do care about the constitution then read this book. People on the left and right are always accusing each other of manipulating it, well that just goes to show that perhaps both are a little guilty, and this book finally drives home some serious things. The best part is that it is factual and therefore informative and edcuations to all the emo-cons who are running around repeating the same dogma to everyone about what they think is the truth, which of course they get from CNN headlines and the NY Times not that I am naming names of news sources that suffer from extreme manipulation or anything.
Rating: 5 / 5