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Limiting Government, But Not Judges

By: Bradley C.S. Watson
Posted: November 3, 2014

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A review of The Classical Liberal Constitution, by Richard Epstein


n his new book, The Classical Liberal Constitution, Richard Epstein seeks to present a “distinctive synthesis” of constitutional law that is neither progressive nor conservative. For Epstein, the Laurence A. Tisch Professor of Law at New York University and one of the most distinguished libertarian (he would prefer “classical liberal”) scholars of American law, the progressive impulse leads government to pursue onerous tax and regulatory policies that interfere with individual liberty and property, while the conservative impulse leads to undue judicial deference to the political branches as they pursue those policies. He wants constitutional structure and individual rights to defer instead to the “classical liberal theory,” which he believes animated the American Founders. To that end he interprets both constitutional language and prescriptive constitutional practices in light of this theory. So, although giving the judicial branch the final say over the legislative and executive branches might not be in the Constitution itself, judicial supremacy puts a useful check on the power of government. Indeed, many “questionable interpretations” should be allowed to stand, argues Epstein, if they do a better job than the “original version” of the Constitution of advancing classical liberalism. To an originalist, them’s fightin’ words.

Epstein’s single-mindedness distorts the Constitution that he—almost by accident—explicates. What’s more, his sprawling tome consistently says too much, and too little. Amidst his commentary on everything from political philosophy to legal doctrines, constitutional structure, and individual rights, he offers a surprisingly scant account of the book’s central idea—classical liberalism. He claims it is both individualist, though not radically so, and social, incorporating strong notions of private property and limited government. Its goal is not justice but individuals’ “overall welfare,” the latter seeming to entail the former, albeit by implication rather than explanation. Classical liberals, he maintains, must support judicial supremacy in order to prevent political trampling of individual rights. He asserts, rather improbably, that the “classical view of American constitutionalism examined all legal interventions under a presumption of error”—that all infringements are suspect until proven otherwise. That’s a big statement, and one at odds with the broad exercise of police powers throughout American history.

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Epstein rightly notes that America’s founders held that individuals have rights to liberty and property that are antecedent to government, and that this view gave way in the Progressive era to the view that rights are largely the gift of government to be cashed out by administrative experts correcting the injustices of impersonal market forces. Progressive constitutional thinkers claim that the Constitution’s terms are both ambiguous and malleable, ever ready to be adapted to changing circumstances, and always leaving “far greater running room for government action than any classical liberal conception could ever tolerate.” For the classical liberal, the Commerce Clause, in particular, should not be understood to extend the power of Congress virtually without limit. Alas, progressives are systematically insensitive to the danger of excessive national power. Classical liberals recognize this danger, too, but still would advocate robust judicial intervention to prevent states from fragmenting the national economy. In this sense, they are not necessarily for decentralized power.

The list of things that Epstein doesn’t like is long—administrative agencies, limits on standing that might prevent court challenges to government overreach, state meddling with free commerce in goods, to name a few. But he doesn’t make his case against these things very persuasively with the circular argument that “every sound structural limitation tracks classical liberal theory by limiting government intervention.” His objection to wealth redistribution is as old as Aristotle’s, but less complete, and less cognizant of the intractability of the problem: for Aristotle, factional conflict occurs not simply because of inequality of material possessions, but also because of inequality of honors, and injustice results from human desire as well as necessity. The leveling of desire is a tricky thing—one that cries out for healthy regime politics, not lawyers and judges.

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Epstein criticizes both progressives and conservatives for their “excessive faith in democratic politics.” Progressives rose up against the founders’ Constitution by accepting “the intrinsic virtues of deliberative democracy.” But this is far too generous—he should have said they accept those virtues except when they don’t. And he should not be so quick to dismiss political deliberation, or to identify it with “popular democracy.” Deliberation, properly understood, is the means—the only means, according to James Madison—by which the reason of the public, and not its passions, can control and regulate the government.

Epstein argues that too many “modern republicans” overestimate the degree to which participation and deliberation can overcome faction. And indeed, few who have suffered through a faculty meeting in an American college would disagree with him. But it is equally true that few who have suffered through a seminar in a modern American law school would conclude that judicial deliberation is likely to produce outcomes more in the public interest than legislative tug-of-wars. On both cultural and economic questions, the Supreme Court has for decades handed down decisions both risible and appalling—enough of them, one might think, to unite conservatives and classical liberals in opposition to judicial power, and invite them to examine all Supreme Court decisions under a presumption of error.

But for Epstein, even where such decisions are erroneous in their reasoning or conclusions, the weight of prescription is often decisive. Judicial dissembling, or appealing to “empty generalities” as Chief Justice Earl Warren did in Brown v. Board of Education (1954), is acceptable if candor or rigorous reasoning would delegitimize a decision—or, one might say, make the Court (or previous Courts) look bad. We must live with the fierce disputes that arise from Roe v. Wade’s “inelegant” solution (1973) to the problem of abortion because “it is risky to tamper with Roe itself in light of the enormous disruption of settled practice.” Homosexual behavior deserves protection, but at the same time historical practices should not be lightly overturned. Epstein would now “keep the status quo” established by Lawrence v. Texas (2003), because in the 11 years since it was decided, “the outcome has been legitimated.” But he would not—at least not yet—“make the constitutional leap on gay marriage,” even though he believes the case for it is powerful because the state exerts a monopoly on the issuance of marriage licenses. Many readers will think there is more at stake here; that anti-trust theory doesn’t quite get the classical liberal where he wants to go on same-sex marriage. Such readers might also hold to a healthy skepticism of the classical liberal effort to apply private law concepts to public law—a presumption of error, as it were.

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Yet, it is our “lawyers, thinkers, and judges,” writes Epstein, who must be the guarantors of the classical liberal Constitution, rather than the people themselves. He fails to see that judges cannot be the guardians of a political theory—not only because of the republican nature of the Constitution, but because judging is inherently unsuited to the task. And even if they were the appropriate agents of constitutional purity, tempered by prescription, they would insist on many things neither republican nor classically liberal, as Epstein himself amply documents. Judges are no more likely—and one suspects less likely—to arrive at a proper application of classical liberal principles than nine people picked at random from the Kansas City telephone directory. Ironically, by the time he’s done, progressive constitutionalism is the only thing left in Epstein’s scheme.

Despite his desire to identify with the founders, he is always a degree or two removed from their republicanism—from their belief in politics. He sees the structural limitations of the Constitution and its concern for individual rights as evidence that government must always and everywhere be slowed down, for the dangers of moving too fast outweigh the dangers of moving too slow. But what moves America faster than a federal judge on a tear? And since when are imperious courts no longer part of “the government”? Surely the ability and willingness to correct errors is as important as slowness for decent government. Epstein claims that in many instances our “national problems” are largely the legislative and executive branches of government themselves. And for these problems, “there is only a constitutional, not a political, solution”—as if the dividing line between the two were as bright and clear as that between a contract and a tort.

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Epstein is concerned with factional conflict and the sufferings of the few at the hands of the many, but he is not willing to accept Madison’s rough-and-tumble political solution to this unavoidable political problem. Republicanism, in theory and in practice, is discussed hundreds of times in The Federalist—the yet-to-be-coined phrase “classical liberalism” not once. Epstein occasionally merges classical liberalism with republicanism, reducing the former’s central premise to the Lockean observation that individuals are free and equal in the state of nature. But it is a long road from this republicanism to judicial supremacy over the political determinations of individuals after they leave the state of nature. The founders, unlike Epstein, do not conflate autonomy with liberty—the former goes unmentioned by The Federalist or the Constitution, and the latter is understood to be political liberty entailed by natural equality and self-government.

The messiness of republicanism is something with which Richard Epstein is far too uncomfortable—a trait he shares with the very progressives he takes to task. One suspects this is not unrelated to the fact that members of today’s legal classes, whatever their political orientation, are products of the modern law school that sprang forth a century ago from the crucible of Progressive ideology. Many classical liberal legal theorists are willing to part company with the founders and join hands with progressives in calling for rule by elites. But as Alexis de Tocqueville cautioned, one should not look to the United States for “uniformity and permanence of views, minute attention to details, perfection in administrative procedures. What is found there is the image of strength, a little wild, it is true, but full of power and life, accompanied by accidents, but also by activities and efforts.” Epstein’s subtitle is The Uncertain Quest for Limited Government. It is a quest not likely to be made more certain by chipping away at America’s foundations.