BEWARE OF SCHOLARS claiming the one true path by positioning themselves between two other positions deemed extreme or misguided. In his new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, Richard A. Epstein, Laurence A. Tisch Professor of Law at New York University School of Law, rejects both the conservative “originalist” and the liberal “living Constitution” interpretations of the US Constitution, in favor of “classical liberal theory.” Epstein prides himself on pursuing an “unorthodox path” and for going “against the grain of modern Supreme Court jurisprudence and much of the legal scholarship that has grown up around that body of work.”
Epstein blames “the major disarray that infects every area of modern American life” — “every” no less — on “both traditions that dominate modern American constitutional law — one conservative and the other progressive.” In a stunningly sweeping checklist of problems facing our nation, he claims that the “steady decline in the average standard of living; constant battles over debt limits and fiscal cliffs; uncertainty over key elements of the tax structure; massive overregulation of the most productive sources in society (health care and financial services); government-inspired brinkmanship in labor negotiations; and runaway redistribution programs that undercut the economic production that makes these programs viable” could “never” have happened under “the original constitutional structure, faithfully interpreted in light of changed circumstances.” This is a very bold declaration, placing sole responsibility on certain theories of jurisprudence, while ignoring the roles played by the legislative and executive branches. All told, Epstein bites off more than he can chew.
Not that he does not mount a prodigious case spanning over 684 pages, oscillating between lively, engaging prose and dense, mind-numbing verbiage. The essential flaw is that having so thoroughly demonized both the conservative and progressive interpretations of the Constitution, Epstein himself frequently qualifies his most absolute pronouncements, embracing aspects of the very theories he rejects and eventually endorsing many of the judicial outcomes of the constitutional interpretations he sets out to discredit. Consequently, in the end, instead of charting a new, innovative, and ambitious path to a more faithful and productive interpretation of the Constitution, Epstein asks us to arduously meander through some highly technical and often obscure legal arguments, eventually leaving us and the law back where we started.
Epstein contends that the only valid interpretation of the Constitution is based on the “classical liberal tradition” which “starts from the twin pillars of private property and limited government” and emphasizes federalism, separation of powers, and economic liberties. Elsewhere, he adds “individual rights” but defines them as “liberty of action, the ownership of private property, and the freedom from arbitrary arrest and prosecution.” Epstein’s concept of “classical liberal tradition” places little emphasis on such “individual rights” as freedom of speech and the press, separation of church and state, the right of assembly, and the right of privacy.
Epstein takes “originalists,” such as Justice Antonin Scalia, to task for their insistence that all constitutional issues must be based on the text of the Constitution as publicly understood in 1791. Sounding very much like the “living Constitution” proponents he’s about to criticize, Epstein points out that conservative originalists cannot remain faithful to the text because “the Constitution is written in broad bold strokes, which at some points confer vast powers on government and at others impose major limitations on their exercise.”
He rejects the originalists’ “cramped mode of interpretation which, ironically, is not faithful to the dominant interpretive norms of the Founding period,” because “in no legal system at any time could the question of construction be reduced to a search for original public meaning of terms that are found in the constitutional text.”
Epstein also observes that the originalist view “offers no basis for the implication of additional constitutional terms that are dependent on either government structure or the nature of individual rights.” Consequently, “a bare text raises more questions than it answers,” which make it imperative “to isolate the general theory that animates the text — usually the protection of personal autonomy, liberty, and property.”
Epstein puts his final nail in the originalist coffin by arguing that “the designers of the original system were bold experimentalists who worked from past historical precedents that did not give a good indication of the strains that would emerge once the federal system was up and running.”
Nonetheless, according to Epstein, his “list of shortfalls of conservative originalism does not […] legitimate the powerful strands of progressive thought that have dominated much of American constitutional law since the New Deal.” In a baffling passage, which exemplifies far too much of this book, Epstein alleges that by “making ambiguity the interpretive norm,” progressives “do serious danger to the rule of law.” But in the very next sentence he himself asserts that “ambiguity in some cases is to be expected, but usually only in complicated cases with mixed motives and uncertain extent,” as if that doesn’t describe most, if not all, of the fundamental questions of constitutional interpretation that reach the Supreme Court.
In Epstein’s world, he can propose that fundamental constitutional questions be decided by reference to a general theory, but when progressives do the very same thing, they are “making ambiguity the interpretive norm,” and posing “serious danger to the rule of law.”
Epstein’s real beef with what he sees as the overly progressive trend of the Supreme Court since the New Deal is not really about these variations in constitutional interpretation (since Epstein himself embraces aspects of both when it suits his purpose). What Epstein is really unhappy about is that by and large the Court, made up of shifting majorities of conservatives, moderates, and liberals alike, has used a “rational basis” test to generally uphold most energetic social and economic government programs (which Epstein believes infringe on private property rights) and a “strict scrutiny” test to strike down most infringements on individual constitutional rights (which Epstein believes should also apply to private property rights).
Epstein criticizes progressives for accepting “the intrinsic virtues of deliberative democracy and the administrative state, unchecked by strong protections of property and contract,” and for offering “a pessimistic assessment of the performance and even the possibility of unregulated markets in postindustrial society.” Yet, Epstein fails to mount a convincing case why the interests of “property and contract” deserve to take precedence over the “virtues of deliberative democracy,” or why “unregulated markets” do not deserve a “pessimistic assessment” given, for example, the national crisis in 2007/8 brought about by unregulated or under-regulated “too big to fail” banks and lending institutions.
While Epstein’s classical liberal theory is limited to “negative rights,” which guarantee individuals freedom from government restraints, as articulated in Justice Stephen Breyer’s 2005 book, Active Liberty: Interpreting Our Democratic Constitution, “active liberty” guarantees “positive rights” including education, minimum wages, safe working conditions, housing, and health care.
When he addresses specific Supreme Court decisions, Epstein reveals his true colors, but even then he is prone to equivocate. He complains about “debatable categorical judgments that come from on high,” such as when the Court held that the Eighth Amendment prohibits the use of capital punishment on persons under the age of 18, and forbids the imposition of a mandatory life sentence without parole against juveniles for homicide and nonhomicide offenses.
He complains that the Supreme Court’s decision in Griswold v. Connecticut, striking down state laws which criminalized the use of contraceptives based on the right of privacy, was a “judicial adventure”; and Roe v. Wade, protecting a woman’s constitutional right to abortion, was “suspect.” Epstein says much more about these cases, but in the end, he bows to the “clear majority of public support” and concludes that “it is too risky to tamper with Roe itself in light of the enormous disruption of settled practice.”
Epstein forthrightly declares that he would have voted with the majority in Bowers v. Hardwick (1986), which upheld criminal laws prohibiting homosexual sodomy, and he would have voted with the dissent in Lawrence v. Texas (2003), which reversed Bowers and held such laws unconstitutional. But then he immediately adds that “ten years later, I would keep the status quo because even in that short time I think that the outcome has been legitimated.” Then he switches back and declares that he “would not make the constitutional leap on gay marriage in the face of divided public sentiment on a question that goes to the heart of the morals head of the police power.”
Unfortunately, Epstein fails to explain why the constitutional foundation established in Lawrence, which he admits “has been legitimated,” does not equally support the constitutional foundation for same-sex marriage. (Epstein’s book, although published in 2014, was written before the Supreme Court’s decision in United States v. Windsor, an opinion by Justice Anthony Kennedy, that struck down the federal Defense of Marriage Act on the grounds that the prohibition on same-sex marriage constituted a deprivation of liberty in violation of the due process and equal protection provisions of the Fifth Amendment. Epstein, no doubt, would have voted with dissent.)
The Classical Liberal Constitution poses a steep challenge for readers who are not sophisticated constitutional scholars, and even for those who are. Most will find it hard to follow Epstein when he writes like this. “Thus, let ‘a’ (with a value of 10) be the differential for strict scrutiny against government regulation and ‘b’ (with a value of .1) be the differential for rational basis in favor of regulation, where ‘a/b’ (10/0.1), their ratio, represents the hundred-fold difference in odds as one moves from one standard of review to the other.” Why not just write: “Government regulations are a hundred times more likely to be struck down under the strict scrutiny test than under the rational basis test.”
This is a sprawling book with big ambitions, which remain largely unmet.
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.