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The Classical Liberal Constitution: The Uncertain Quest for Limited Government
American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard Epstein laments this complacency which, he believes, explains America's current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers' original text, and to the limited government this theory supports.
704 pages, Hardcover
First published January 1, 2013
About the author
Richard A. Epstein
89 books90 followersRichard A. Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at The University of Chicago Law School.
Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.
His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.
His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
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Displaying 1 - 4 of 4 reviews
September 13, 2019
A relatively technical book. I made several attempts to start it only to give up before finally reading through it while I should have been studying for the bar. It was a lot easier to read after attending law school than before, though I believe (as with most books) a diligent and motivated reader can understand the materials with some effort.
The book is both an explanation and critique of modern doctrine across different constitutional subjects. The author argues that the constitution was originally created off of the theory of classical liberalism, which had a particular fear of concentration of power, a love of individual liberty and fear of factions controlling the government and favoring those factions (while admitting that the document was flawed, most clearly in its acquiesce to the existence of slavery). Somewhat interestingly, the author claims that the constitution is not libertarian, which the author defines as empathizing individual rights above all other considerations. To the author, a classical liberal presumes that voluntary exchange and association are the best way to organize society with narrow crave-outs for government to deal with free riding problems (public goods), holdouts, and natural monopolies (rate setting and requirement to deal on non discriminatory basis). In the classical liberal view, competition is good, and is one of the reasons that generally powers should be devolved to the states where the people’s exit rights keep states from being tyrannical. An interesting argument is that the increased connectivity and complexity of the economy is an argument against federal regulation, since the value of exit rights have actually increased, nor is it clear that a single uniform federal standard gets the balance for complex value judgments correct. In the author’s view, progressive legal trends have deviated from that conception to the harm of the constitutional structure and the health of the country. The author is particularly worried about playing fast and loose with text and structure in order to aggregate power at the federal level, where that power is then subject to capture by factional interests. The author is concerned that progressive legal thought has thrown the baby out with the bathwater when it goes from finding some gray zones to rejecting any formalist structures. The author trained as a common law lawyer, and is thus also interested in prescriptive constitution as well, how a precedent that was initially decided incorrectly can still bind though its settlement over time.
Turning to subject areas, the book does not fall easily into any partisan line for the positions it takes. The book does not like federal law forcing employers to negotiate with unions, since bilateral monopolies seem less efficient than competitive bargaining. The book argues for increased flexibility for local institutions to balance affirmative action. The author argues that judicial review may have been wrong in the first instance but has evolved into a useful method to protect rights, and wants to expand standing so that people may better protect their rights. The author thinks that corporate speech should be protected partially because corporations do not always take the same side on issues. He likes the dormant commerce clause in keeping the states a free trade zone but hates the expansion in the commerce clause that allows the federal government near unlimited powers. A prevalent theme is the weakening of constitutional protection for property rights, by the doctrines dilution of the takings clause, and substantive due process for property by narrowing rights and expanding police power contrasted to a corresponding growth in protections for political rights. The author laments the use of rational basis tests to prop up clearly protectionist laws. Each issue is well thought out and has the great hallmark of good legal scholarship, which is that when you read the proposition at first you are totally baffled but when you go on to read the reasoning the proposition falls more into place. For example, the book ties the establishment clause to anti-redistribution. But the argument is that the government is prohibited from taking resources from the commons in order to subsidize a particular religion or non-religion and that seems reasonable. The book critiques New York Times v. Sullivan as insufficiently protecting reputation and deterring public service. The book thinks that Heller was wrong because DC has no militia. The argument is that the second amendment read properly with article I shows that the constitution split the management of state militias between congress and the states, and the second amendment was to bind congress from disarming state militias (this dovetails interestingly into some historical research that the Framers wrote the second amendment in light of the British disarmament of the nominally co-equal Scottish militia). Theres some interesting analogizing to private law (the government should get some leeway when it manages, similar to business judgement rule) and a lot of great clear economic analysis (for example analogizing the tiers of scrutiny to type 1 and 2 errors) . I could go on and on. The topics are so varied and sprawling (but structured like a first year course on constitutional law, structure first and then rights) that any summary will necessarily fall short. There are topics of course that I do not agree on with the author but the analysis is always interesting. I know in the future I will likely return to the book to see his clear analysis on various topics I would like more insight on. I rarely feel that way about a book.
The book is both an explanation and critique of modern doctrine across different constitutional subjects. The author argues that the constitution was originally created off of the theory of classical liberalism, which had a particular fear of concentration of power, a love of individual liberty and fear of factions controlling the government and favoring those factions (while admitting that the document was flawed, most clearly in its acquiesce to the existence of slavery). Somewhat interestingly, the author claims that the constitution is not libertarian, which the author defines as empathizing individual rights above all other considerations. To the author, a classical liberal presumes that voluntary exchange and association are the best way to organize society with narrow crave-outs for government to deal with free riding problems (public goods), holdouts, and natural monopolies (rate setting and requirement to deal on non discriminatory basis). In the classical liberal view, competition is good, and is one of the reasons that generally powers should be devolved to the states where the people’s exit rights keep states from being tyrannical. An interesting argument is that the increased connectivity and complexity of the economy is an argument against federal regulation, since the value of exit rights have actually increased, nor is it clear that a single uniform federal standard gets the balance for complex value judgments correct. In the author’s view, progressive legal trends have deviated from that conception to the harm of the constitutional structure and the health of the country. The author is particularly worried about playing fast and loose with text and structure in order to aggregate power at the federal level, where that power is then subject to capture by factional interests. The author is concerned that progressive legal thought has thrown the baby out with the bathwater when it goes from finding some gray zones to rejecting any formalist structures. The author trained as a common law lawyer, and is thus also interested in prescriptive constitution as well, how a precedent that was initially decided incorrectly can still bind though its settlement over time.
Turning to subject areas, the book does not fall easily into any partisan line for the positions it takes. The book does not like federal law forcing employers to negotiate with unions, since bilateral monopolies seem less efficient than competitive bargaining. The book argues for increased flexibility for local institutions to balance affirmative action. The author argues that judicial review may have been wrong in the first instance but has evolved into a useful method to protect rights, and wants to expand standing so that people may better protect their rights. The author thinks that corporate speech should be protected partially because corporations do not always take the same side on issues. He likes the dormant commerce clause in keeping the states a free trade zone but hates the expansion in the commerce clause that allows the federal government near unlimited powers. A prevalent theme is the weakening of constitutional protection for property rights, by the doctrines dilution of the takings clause, and substantive due process for property by narrowing rights and expanding police power contrasted to a corresponding growth in protections for political rights. The author laments the use of rational basis tests to prop up clearly protectionist laws. Each issue is well thought out and has the great hallmark of good legal scholarship, which is that when you read the proposition at first you are totally baffled but when you go on to read the reasoning the proposition falls more into place. For example, the book ties the establishment clause to anti-redistribution. But the argument is that the government is prohibited from taking resources from the commons in order to subsidize a particular religion or non-religion and that seems reasonable. The book critiques New York Times v. Sullivan as insufficiently protecting reputation and deterring public service. The book thinks that Heller was wrong because DC has no militia. The argument is that the second amendment read properly with article I shows that the constitution split the management of state militias between congress and the states, and the second amendment was to bind congress from disarming state militias (this dovetails interestingly into some historical research that the Framers wrote the second amendment in light of the British disarmament of the nominally co-equal Scottish militia). Theres some interesting analogizing to private law (the government should get some leeway when it manages, similar to business judgement rule) and a lot of great clear economic analysis (for example analogizing the tiers of scrutiny to type 1 and 2 errors) . I could go on and on. The topics are so varied and sprawling (but structured like a first year course on constitutional law, structure first and then rights) that any summary will necessarily fall short. There are topics of course that I do not agree on with the author but the analysis is always interesting. I know in the future I will likely return to the book to see his clear analysis on various topics I would like more insight on. I rarely feel that way about a book.
May 16, 2021
[Imported automatically from my blog. Some formatting there may not have translated here.]
Let it be said that if I ever find myself needing a Constitution for a new country, I would try to get Richard Epstein to write it.
As always, many thanks to Dimond Library at the University Near Here for wangling this book on a loan from Williams College. Otherwise, getting it from Amazon would have set me back $52.50 (or $44.99 for the Kindle version).
It is a doorstop of a book, 684 pages in all, with 583 pages of main text. And it's not particularly easy going for those of us whose acquaintance with US Constitutional law is scattershot and amateurish. For just one example, I was stopped by the phrase ultra vires on page 130—what's that mean? (It means, as it turns out, "beyond the powers": the Supreme Court refusing to rule on the constitutionality of legislation, because the plaintiffs could not show they were directly harmed by the legislation, hence had no standing to bring the case. But I had to Google.)
The book itself is a sweeping analysis of contentious Constitutional issues over the centuries. Epstein's thesis is that the Constitution can be, and should be, interpreted in light of its philosophical underpinnings: specifically, the theory of classical liberalism as expounded by John Locke and the other thinkers influencing the original authors. Epstein shows that efforts by both progressives and conservatives to explicate other theories of constitutional interpretation have led us to our current muddle.
Epstein's primary target is the "progressive" side: the stretched-beyond-credibility interpretations of Constitutional clauses that have allowed the Federal government to legislate in matters properly left to the states, or to the citizenry.
Not all of Epstein's arguments will find favor with current-day conservatives/libertarians, however. For example, he reads the Second Amendment to limit the Federal power over state militias. (Noting the previous mentions of "militia" in Article I, Section 8 and Article II, Section 2.)
All in all, I learned stuff. Not as much as I could have, or probably should have. As I've said before (but about a different author): "when I say I "read" it, what I mean is: I looked at just about every page, honest."
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Displaying 1 - 4 of 4 reviews