Btw, we discussed whether the “Constitution in Exile” phrase is actually used by conservatives and libertarians–and whether the answer to that question matters–back in December: See here and scroll up if you’re interested. I have to say that while I nitpicked Rosen a little bit yesterday, the fact is that there are at least some legal thinkers who would like to use the courts to undo the New Deal and this project strikes me as distinctly unwise. (Which is not to say that every precedent from the late 1930s should continue forever.)