Orin Kerr's got a nice post on Cass Sunstein's use of the phrase: "The Constitution in Exile." According to Sunstein, the phrase is routinely invoked by Conservatives to describe the understanding of the Constitution pre-New Deal. Kerr notes that the phrase, in fact, tends to be used by liberals (mainly Sunstein himself), which Kerr sees as a rhetorical device on their part:
Sunstein's claim is ... that conservatives themselves use the phrase ? "right-wing activists . . . talk about restoration of the 'Constitution in Exile'." The difference matters, I think, because describing something as being "in exile" suggests recognition of a revolutionary agenda. If a government is overthrown and the old leaders flee but remain intact, referring to the old leaders as "the government in exile" suggests that the old government is just biding its time before it can launch a counterrevolution. The rhetorical power of Sunstein's claim lies in its suggestion that conservatives see their own goals as truly revolutionary. If the phrase is not actually used by conservatives, but rather is a characterization by their critics, I think that makes a notable difference.
In my experience, conservatives much more often invoke Scalia's distinction between the "living constitution" advocated by liberals (like Sunstein) and the "dead constitution" advocated by conservatives (like Scalia .. or me, for whatever it's worth). Note that this dichotomy also some rhetorical power. One imagines Dr. Frankenstein (i.e., the Supreme Court) standing above the dead Constitution sprawled out on slab. Throw the switch in time that saved nine, and "It's Alive!" So we spin the "living Constitution" as "Frankenstein's Monster." Heh.
