The New Deal Constitution in exile.(constitutional vision of positive rights)

Duke Law Journal, October, 2001 by Forbath, William E.

INTRODUCTION

Judge Douglas Ginsburg's evocative phrase "the Constitution-in-Exile" (1) recalls the New Dealers' battle against the classical liberal Constitution fashioned in the Lochner era. For Ginsburg, the Supreme Court's embrace of the New Deal revolution cast the old Constitution into exile, its memory "kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty." (2) Until that day, Ginsburg and other restorationist scholars lament, the old Constitution's fundamental commitments--to limited national government and due regard for states' rights, to economic liberty and the rights of property--will remain forsaken. (3) Constitutional culture will remain marred by a "double standard," (4)...

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