Stephen Kaus: Waiting for Lochner

When it comes to a sense of self-importance, you can’t match the self-proclaimed “serious” conservative legal theorists. You know, the ones who ran Harriet Meirs off the field.

So, it turns out that you can really get under their skin by accusing them of attempting to reinstate the “Constitution in Exile.” Jesse Jackson’s Tuesday op-ed against SCOTUS nominee Samuel Alito referred to the CIE phrase and produced vitriolic reaction from reactionary law professors Todd Zywicki and Ann Althouse. Jackson pointed to some scary things about Alito and accused him of being willing to legislate from the bench to strike down progressive legislation, but what cheesed off the professors was Jackson’s reference to Alito as part of “a new reaction proclaiming that the real Constitution has been "in exile" since the 1930s.” See Volokh and Althouse.