Today’s Blogs

The Lawyer in Exile
By David Wallace-Wells
Posted Monday, April 18, 2005, at 3:17 PM PT

Bloggers debate a New York Times Magazine article that details a radical libertarian movement to restore the judicial standards of the 19th century. They also discuss Bob Kerrey’s bid to be mayor of New York and are and mesmerized by the cardinals’ conclave meeting in Vatican City.

The lawyer in exile: A New York Times Magazine article by law professor Jeffrey Rosen chronicles the efforts of libertarian lawyers, judges, scholars, and activists to restore to primacy the principles of free enterprise in constitutional law. Quoting Douglas Ginsburg, Rosen calls the loose association of advocates the "Constitution in Exile" movement and traces its contemporary incarnation to celebrity scholar Richard Epstein.

At group blog The Volokh Conspiracy, David Bernstein leads a charge of fault-finding legal bloggers. Bernstein thinks Rosen "regurgitates" Progressive-era conspiracy theory, particularly in linking Republican Party politics with the libertarian juridical tradition. "[I]f one is going to write about those who want to restore pre-New Deal doctrines," he writes, "it’s important to know … what those doctrines actually were and what effect they had."

Citing Bernstein, Orin Kerr wonders why the Times would commission an essay on a nonexistent movement. "Any old newspaper can report on a real trend," he writes, "but it takes the paper of record to invent one." Real or imaginary, Rosen’s topic frightens many liberal bloggers. At Mahablog, blog watcher Barbara O’Brien criticizes the so-called movement’s "preservative" position, which treats "the Constitution as a museum piece to be locked up and revered." She offers her own " ‘utilitarian’ view, which says the government established by the Constitution should meet the needs of people alive today and not be limited to meeting the needs of people living in 1787."

At Outside the Beltway, conservative James Joyner agrees with Bernstein that Rosen’s "movement" is mere conspiracy theory but argues that Richard Epstein and fellow traveler Clarence Thomas "are essentially right in their view of the [Un-] Constitutionality of much of the post New Deal regulatory state." He notes approvingly that the Supreme Court played an antagonistic role in FDR’s early struggles to implement the New Deal.

Conservative blogger Andrew Sullivan sees evidence of partisan bias in the essay. He can’t believe liberal Cass Sunstein got away with calling himself a moderate and thinks the essay’s accompanying photographs cast a less-than-charitable light on the putative players of the movement in question.

Read more about Rosen and the "Constitution in Exile."

Kerrey ’05: Former Nebraska senator and presidential candidate Bob Kerrey has announced that he is contemplating running for mayor of New York.

"Yep. It seems the Democratic slate of candidates is so pathetic … that Bob Kerrey says he’s considering jumping in the ring," says Republican, non-native New Yorker Scott Sala at Slant Point. "Now, the entire city has confirmation from a high-profile Dem that the candidates riding the donkey are a bunch of second-rate jokes to Bloomberg’s varsity team."

At Lemonblog, Mike Rinzel declares his support for Kerrey, writing that a mayor should wield political clout in Washington, that Kerrey is a perfect New York moderate—progressive on social policy and fiscally responsible—and just the kind of outspoken firebrand the city loves. Moreover, Rinzel says that, "Kerrey, intimate with the details of New York’s experience prior to and after 9/11, has been chomping at the bit to confront Gulliani on his apparently heroic but hopelessly incompetent preparations before the 9/11 attacks and grandstanding afterward."

Alex at Buck Hill is amazed there are so many candidates diving into the fray. There are "literally five or six people…jockeying for the position most likely to stop your political career in its tracks," he writes. "Sorry guys – only one of you will be lucky enough to be forced out of office as the city goes to hell."

Read more about Kerrey’s possible candidacy here.

Black smoke, white smoke 1-2-3: Deliberations in Vatican City ended today with a plume of black smoke, indicating the cardinals had not chosen a successor to Pope John Paul II. Bloggers are as mesmerized by the rituals of the conclave as they are by the debate over the papacy.

"It’s the being locked away that makes the selction process interesting," says freelance writer John Scalzi. "If you’re going to pick the head of an organization, this is the way to do it." Others find beauty in the archaic nature of the ceremony. "With all the technological advances, all the information dissemination techniques, all the pomp and circumstance, all the theater, etc… We’re still watching, intently, for smoke," writes Tom, a seminary hopeful, at Does This Offend You? "Smoke. God, I do love being Catholic."

Read more blog posts about the conclave.

Have a question, comment, or suggestion for Today’s Blogs? E-mail

David Wallace-Wells is a Slate intern

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