Ramesh – I meant to ask you about this very thing a couple weeks ago. I’ve only ever heard/seen this phrase from liberals like Rosen and Sunstein. I’ve known a lot of Federalist Society types over the last decade, and I’d never heard the phrase from them. I searched lexis-nexis for “constitution in exile” and only 27 hits came back. Only one of them was from a conservative publication — NRO in fact — in a piece by Mark Levin. But Mark was merely quoting Sen. Dick Durbin verbatim in his questioning of Viet Dinh. The exchange is telling:
SEN. DURBIN: And you are not familiar – or are you familiar, rather, with the term, “the court in exile – the Constitution in exile?”
MR. DINH: No, sir, I am not.
SEN. DURBIN: Okay.
If Viet Dinh can say under oath that he is not familiar with the phrase then it must be a myth that conservatives bandy it around. And if you and the Volokh guys don’t claim it, who’s left to claim it?
I don’t know why I forgot to ask you about it. But I really do think it’s a journalist device created by liberals. Linda Greenhouse seems convinced that conservatives use it all the time, but I see no evidence of it.
Now, for the record, I do think it would be nice to call the Constitution home, but that’s another issue. More sleuthing required.