Rationality in Exile

There's a piece called "The Unregulated Offensive" in the New York Times Magazine. I would provide a link, but it wouldn't last very long. It's definitely worth a read.

The basic premise is that conservatives are trying to use the courts to strike down most of the regulatory state, which they see as unconstitutional. Throughout the piece, conservatives talk openly about their desire to achieve this goal. Professor Epstein, who taught me torts, is prominently featured. Professor Sunstein, who taught me elements of the law, provides a few comments on the effort. I should say at this point that both men are very smart, intellectually honest, and personally kind. I feel a sense of loyalty to both of them.

What's bizarre is the reaction on the internets. In the piece, Sunstein describes himself as a moderate. This sends Andrew Sullivan into a tizzy. He claims that Sunstein is "a big liberal (which is his right), an anyone-but-Bush partisan Democrat, and, in Tom Palmer's words, 'about as radical an advocate of unlimited government as you could find in America.'"

Anyone who knows Sunstein knows that this is beyond absurd. I was recently at a talk by Sunstein during which he attacked the minimum wage as counterproductive. I think it's safe to say that not many partisan Democrats take that stance. Sunstein regularly praises Hayek as one of the best critics of socialism. People like Sullivan fall into the trap of assuming that any cogent attack on conservative ideas must come from a "big liberal." In fact, Sunstein is perceptive, evenhanded, and, dare I say, moderate.

Insufficient unto the post is the evil thereof. Sullivan links to what he calls an "actual critique of the substance of the piece." The only problem is that he links to this post by Orin Kerr. The topic of the post? Whether Sunstein misuses the term "Constitution in exile." We begin to see what Sullivan considers "substance." Kerr's point seems to be that "Constitution in exile," which does sound a bit ominous, is actually a liberal concoction. Unfortunately, the phrase was authored by Douglas Ginsburg, a judicial conservative. Kerr is reduced to arguing: "If the phrase is not actually used by conservatives, but rather is a characterization by their critics, I think that makes a notable difference." Not only is Sullivan's "substance" an argument about terminology, it's a bad argument about terminology.

What's striking about all of this is that I doubt Sunstein and Epstein even disagree about the existence of a movement to restore an older understanding of the Constitution. They probably disagree as to the merits of that movement, but they could sit down and have a rational discussion about the matter. Which is to say, they could do a lot better than Sullivan and Kerr.