I've been meaning to write something about the big article on "Constitution in Exile" judges that ran this past Sunday in The New York Times Magazine. You should certainly read it -- these people want to overturn the New Deal, and maybe not stop there, and the Bush administration might well succeed in putting a number of them on the federal courts, including the Supreme Court. We learn a few tidbits about some of the Bush nominees who are currently being held off by the Democrats -- a century ago the Supreme Court first dealt with minimum-wage and maximum-hours laws, finding them unconstitutional, and we're told that Bush nominee Janice Rogers Brown thinks those rulings were just swell (a good point to remember next Sunday, when preachers and Bill Frist are telling us that Democrats hate Bush's appointees because they're so Christian).

But what we never get from the article -- we never got this from the recent lengthy New Yorker profile of Antonin Scalia, either -- is a sense of the intellectual debate between right-wing legal radicals and everyone else. Professor Cass Sunstein is trotted out in each article, to criticize Scalia's "originalism" or the C-in-E movement, but the best he can do is enumerate the rulings we wouldn't have had if the modern radicals had been on the courts. A court full of Scalian "originalists" wouldn't have produced the Brown v. Board of Education decision! Constitution in Exile judges would probably find Social Security unconstitutional!

That's important, but it's not good enough. The authors of these articles (Jeffrey Rosen in the Times, Margaret Talbot in The New Yorker) seem wary of the radicals, but keep reading and you can see they're a bit overwhelmed by the radicals' seeming intellectual rigor. As a result, they never provide a rebuttal of the radicals' theories -- only of what those theories could lead to.

Aren't there competing theories of constitutional law that have equal intellectual heft? Isn't there someone who can rigorously defend the way modern courts interpret the Constitution based on our history? Couldn't Talbot and Rosen find a better rebuttal that Cass Sunstein saying, "If these guys were in charge, things would really suck"?

What makes this even odder is that Rosen says Scalia and the C-in-E crowd don't see eye to eye -- though Rosen never really makes clear why. As a layman, I don't understand this -- aren't the C-in-E folks and Scalia saying the same thing about the pure words of the Constitution? If Talbott and Rosen can't tell us how liberal and moderate scholars really think about the Constitution, couldn't one of them at least tell us how Scalia's arguments challenge the arguments of the C-in-E crowd?

But there's your somewhat-liberal media: resting on the laurels of the New Deal and the civil-rights era and unable to recognize that we have to prove we have better ideas than these right-wing bastards. Meanwhile, Scalia may be Chief Justice soon (though I'm still betting on Thomas), and Bush has three C-in-E sympathizers ready to join the federal bench if Frist exercises the nuclear option.

*****

Adam Cohen knows what needs to be done. He has an "Editorial Observer" column in today's Times that challenges Scalia -- as a hypocrite and a fraud. The piece is titled "Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too." Some excerpts:

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language....

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution - in this case, rights for states - Justice Scalia's reaction would be withering....

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property....

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument - it is an unapologetic defense of judicial activism....

That's good -- that's very good. Scalia wants you to believe that his logic is always unassailable, and I think he convinced Margaret Talbot. It's good to see that he didn't convince Adam Cohen. More, please.