The phrase, the “Constitution-in-exile,” has become short-hand for labeling a judge as an enemy of the post-modern SCOTUS and especially Roe. Like most short-hand phrases, it allows opponents of a particular nominee to avoid detailing exact objections to specific decisions, and instead to allow the listener to imagine for himself what the charge means. The anti-religion gang asserts that it means the return of the established church. The gun control crowd assert it means F-15s to anyone who can fly. The abortion-rights absolutists argue that it means a judicially-decreed criminality for abortion providers.
So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.
I am teaching the Contracts Clause this week, which slumbers but is not “in exile” anymore than the substantive due process theory is in exile. (The latter, identified first with Lochner, has been used in the field of economics by the SCOTUS to strike at excessive punitive damage awards in recent years, e.g. State Fram Mutual Automobile Insurance Co. v. Campbell. This is a 2003 holding that struck down a huge punitive damages award, which written by Justice Kennedy, but dissented from by Justices Scalia, Thomas, and Ginsburg –making it a ripe doctrine for reconsideration with the new Chief and Justice Alito on the court.)
As for the Contracts Clause, in Allied Structural Steel Co. v. Spannaus, a 1978 case in which the SCOTUS struck down a Minnesota law that sought to impose certain “pension funding charge” on companies leaving the state, Justice Stewart dusted off the Contracts Clause which had been put in the Court’s basement in 1934, writing:
Although it is perhaps the strongest single constitutional check on state legislation during our early years as a Nation, the Contract Clause receded into comparative desuetude with the adoption of the Fourteenth Amendment, and particularly with the development of the large body of jurisprudence under the Due Process Clause of that Amendment in modern constitutional history. Nonetheless, the Contracts Clause remains part of the Constitution. It is not a dead letter.(Emphasis added.)
Folks who throw around the phrase “Constitution-in-exile” as a pejorative would say Stewart’s decision was a shocking retreat from precedent, an attempt to summon this part of the Constitution from its exile. Supporters of Stewart’s opinion would say he took his oath seriously. There has been no follow-up to Spannaus from the Court. But the Contracts Clause hasn’t been repealed either.
The point is the debate about the phrase “Constitution-in-exile” is really a debate between proponents of the Constitution as understood by Madison, Marshall, and other early geniuses of the Framing and first decades of the Republic, and the more recent vision of William O. Douglas, William Brennan, Earl Warren and Abe Fortas. The shorthand stuff doesn’t explain a thing, and is in fact a marker of someone unprepared to debate specifics.