The Classical Liberal Constitution: The Uncertain Quest for Limited Government

by Richard A. Epstein

Overview

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.

“[An] important and learned book.”
—Gary L. McDowell, Times Literary Supplement

“Epstein has now produced a full-scale and full-throated defense of his unusual vision of the Constitution. This book is his magnum opus…Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood…All of Epstein’s particular discussions are instructive, and most of them are provocative…Epstein has written a passionate, learned, and committed book.”
—Cass R. Sunstein, New Republic

Product Details

ISBN-13:	9780674975460
Publisher:	Harvard University Press
Publication date:	03/20/2017
Pages:	704
Sales rank:	717,213
Product dimensions:	6.10(w) x 9.20(h) x 2.00(d)

About the Author

Richard A. Epstein is Laurence A. Tisch Professor of Law at New York University School of Law, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School. He is the author of, among other books, Takings: Private Property and the Power of Eminent Domain; Simple Rules for a Complex World; Design for Liberty: Private Property, Public Administration, and the Rule of Law; and The Dubious Morality of Modern Administrative Law.

Table of Contents

Preface: My Constitutional Odyssey ix

Part 1 Preliminaries

Introduction: Our Two Constitutions 3

1 The Classical Liberal Synthesis 17

2 The Progressive Response 34

3 Constitutional Interpretation: The Original and the Prescriptive Constitutions 45

Part 2 Constitutional Structures

Section I The Judicial Power

4 The Origins of Judicial Review 77

5 Marbury and Martin 86

6 Standing: Background and Origins 101

7 Modern Standing Law 119

8 The Political Question Doctrine 133

Section II The Legislative Power

9 The Commerce Power: Theory and Practice, 1787-1865 147

10 The Commerce Clause in Transition: 1865-1937 158

11 The Commerce Clause: Transformation to Consolidation, 1937-1995 168

12 Constitutional Pushback: 1995 to Present, from Lopez to NFIB 183

13 Enumerated Powers: Taxing and Spending 194

14 The Necessary and Proper Clause 210

15 The Dormant Commerce Clause 227

Section III The Executive Power

16 Basic Principles and Domestic Powers 247

17 Delegation and the Rise of Independent Agencies 267

18 Foreign and Military Affairs 285

Part 3 Individual Rights

Section I Properly, Contract, and Liberty

19 From Structural Protections to Individual Rights 303

20 Procedural Due Process: Implementing the Classical Liberal Ideal 314

21 Freedom of Contract 337

22 Takings, Physical and Regulatory 347

23 Personal Liberties and the Morals Head of the Police Power 367

Section II Speech

24 Freedom of Speech and Religion: Preliminary Considerations 383

25 Force, Threats, and Inducements 395

26 Fraud, Defamation, Emotional Distress, and Invasion of Privacy 406

27 Government Regulation of the Speech Commons 423

28 Progressive Regulation of Freedom of Speech: Labor, Communications, and Campaign Finance 437

Section III Religion

29 Free Exercise 461

30 The Establishment Clause: Theoretical Foundations 481

31 Regulation and Subsidy under the Establishment Clause 492

32 The Commons 503

Section IV Equal Protection

33 Race and the Fourteenth Amendment 521

34 Citizenship and the Fourteenth Amendment 541

35 Equal Protection and Sex Discrimination 554

Part 4 Conclusion

Conclusion: The Classical Liberal Alternative 569

Notes 585

Index of Cases 653

General Index 665

Editorial Reviews

The central mission of The Classical Liberal Constitution is to go against the grain of modern Supreme Court jurisprudence and much of the legal scholarship that has grown up around that body of work. The motivation for this argument should be apparent from the major disarray that infects every area of modern American life: 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 brinksmanship in labor negotiations; and runaway redistribution programs that undercut the economic production that makes these programs viable. All of these major programs could not have happened under the original constitutional structure, faithfully interpreted in light of changed circumstances. The confluence of these events cannot be dismissed as the result of random noise or simple mistakes. Rather, they are the ultimate consequence of the profound progressive break with the classical liberal tradition that was the guiding genius in the drafting and interpretation of the Constitution.

From the book

[An] important and learned book.

Times Literary Supplement

Over the past three decades, Richard A. Epstein has repeatedly argued—with analytical rigor and astonishing erudition—that governments govern best when they limit their actions to protecting liberty and property…Mr. Epstein believes that constitutional law lost its way when it began to embrace a Progressive vision, according to which rights are created by a supposedly benevolent state…[He] vividly shows us how constitutional law would look if we gave priority to individual rights—something that we have not done for almost a century.

Wall Street Journal

Epstein has now produced a full-scale and full-throated defense of his unusual vision of the Constitution. This book is his magnum opus…Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood…All of Epstein’s particular discussions are instructive, and most of them are provocative…Epstein has written a passionate, learned, and committed book.

New Republic

Over the past three decades, Richard A. Epstein has repeatedly argued—with analytical rigor and astonishing erudition—that governments govern best when they limit their actions to protecting liberty and property…Mr. Epstein believes that constitutional law lost its way when it began to embrace a Progressive vision, according to which rights are created by a supposedly benevolent state…[He] vividly shows us how constitutional law would look if we gave priority to individual rights—something that we have not done for almost a century.
— Wall Street Journal

Epstein has now produced a full-scale and full-throated defense of his unusual vision of the Constitution. This book is his magnum opus…Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood…All of Epstein’s particular discussions are instructive, and most of them are provocative…Epstein has written a passionate, learned, and committed book.
— New Republic

[An] important and learned book.
— Times Literary Supplement

The central mission of The Classical Liberal Constitution is to go against the grain of modern Supreme Court jurisprudence and much of the legal scholarship that has grown up around that body of work. The motivation for this argument should be apparent from the major disarray that infects every area of modern American life: 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 brinksmanship in labor negotiations; and runaway redistribution programs that undercut the economic production that makes these programs viable. All of these major programs could not have happened under the original constitutional structure, faithfully interpreted in light of changed circumstances. The confluence of these events cannot be dismissed as the result of random noise or simple mistakes. Rather, they are the ultimate consequence of the profound progressive break with the classical liberal tradition that was the guiding genius in the drafting and interpretation of the Constitution.
— From the book

From the Publisher

[An] important and learned book.

Times Literary Supplement - Gary L. McDowell

Epstein has now produced a full-scale and full-throated defense of his unusual vision of the Constitution. This book is his magnum opus…Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood…All of Epstein’s particular discussions are instructive, and most of them are provocative…Epstein has written a passionate, learned, and committed book.

New Republic - Cass R. Sunstein

Over the past three decades, Richard A. Epstein has repeatedly argued—with analytical rigor and astonishing erudition—that governments govern best when they limit their actions to protecting liberty and property…Mr. Epstein believes that constitutional law lost its way when it began to embrace a Progressive vision, according to which rights are created by a supposedly benevolent state…[He] vividly shows us how constitutional law would look if we gave priority to individual rights—something that we have not done for almost a century.

Wall Street Journal - John McGinnis