Richard Epstein responds to Levinson’s Jeffersonian Proposal

I have been asked for my response to Sanford Levinson’s plea for a Jeffersonian approach to constitutionalism that refuses to treat the document as the Ark of the Covenant and treats it as a social arrangement that should be subject to intelligent revision that take into account its failures, which become ever clearer with over time.

I would fight against this general approach with every fiber of my being.  It is not because I think that the current state of affairs is ideal, when manifestly it is not.  It is rather that I think that any revision of the document will move us dangerously along a path of greater and more powerful government at the national and state levels that will only make matters worse.

This assessment derives in large measure from Levinson’s implicit subtext that he is in favor of a more expansive government, which is at direct odds with my own view that the previous expansions of federal power have put burdens upon taxpayers that have greatly constricted their liberty.

The overall message is this.  The convocation of new conventions will introduce a new degree of uncertainty that is likely to make matters worse not better.  It is commonly said of taxes that old taxes are better than new ones, because people can adapt to them.  That is true of constitutions as well.

Richard Epstein

Richard Epstein is the author of The Classical Liberal Constitution. He is the Laurence A. Tisch Professor of Law, New York University School of Law; the James Parker Hall Distinguished Service Professor of Law (Emeritus) and Senior Lecturer, The University of Chicago and the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution.

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  1. Sanford Levinson says

    I appreciate Richard Epstein’s response. He is a man of formidable intellect and debating skills. What I find especially interesting is his comment that he “would fight against this general approach with every fiber of my being. It is not because I think that the current state of affairs is ideal, when manifestly it is not. It is rather that I think that any revision of the document will move us dangerously along a path of greater and more powerful government at the national and state levels that will only make matters worse.” That is, he presumably believes that a new constitutional convention, which I continue to endorse, would inevitably be taken over by a left eager to create an evermore “powerful government . . . that will only make matters worse.”

    The reason I find this so interesting is that this so perfectly mirrors the views of most of my friends and family, i.e., that any convention would inevitably be taken over by people like Prof. Epstein (or worse), who would promptly repeal the Bill of Rights (which Epstein most certainly would not) and repeal the New Deal (which Epstein, if given his druthers, would do). Indeed, what became clear at the conference at the Harvard Law School in late September co-convened by Larry Lessig and the head of the Tea Party Patriots is that almost no one, besides Larry and myself, really wanted a new convention precisely because almost everyone there was certain that their adversaries would control it. Each, I think, strongly over-emphasizes the power of the other.

    In any event, I have a quick response to such worries, which is select delegates (about 700 of them) at random. That would presumably mean there would be some delegates reflective of Prof. Epstein’s views, on the one hand, and, say, Dennis Kucinich on the other. But no one could plausibly believe that either would dominate. We would get what we most certainly do not get in our current frenzied politics, a genuinely representative cross-section of the American demos. As a matter of fact, only a scheme like lottery selection can overcome the mirror-imaging that leads to the cessation of a serious conversation even before it can begin. After all, Professor Epstein scarcely offers a ringing endorsement of the Constitution in the comment quoted above. Rather, he’s simply scared either that people like me will cleverly dominate any convention or, perhaps, that his views are shared only by a relatively small number of Americans (roughly the same percentage as those willing to vote for Ron Paul) and that it’s better to stick with the status quo than to risk exposure to genuinely democratic decisionmaking.

    In any event, I hope that Prof. Epstein is amenable to continuing the debate.

  2. z9z99 says

    Here’s a suggestion: write what you think should be the preamble of an updated Constitution. If it begins with something like “We the people of the United States of America, in order to defend Gaia our Mother…,” one would expect a completely different focus than if it read “We the people of the United States, loving our country but fearing our government…” The essence of a Constitution should arise from philosophy rather than law. Quibbling over substance should have to await determination of purpose. Lawyers can be counted on to perceive any Constitution, or for that matter, any constitutional convention, as a tool that can be used to benefit some interests at the expense of others. The concern that idealistic but naive, and clever but unscrupulous interests will corrode the foundations of liberty are real, and cannot be allayed by condescension or elitist bromides. A constitutional convention is just as likely to resemble the Blind men and the Elephant as it is the School of Athens.

    The purpose of a Constitution is not to allocate power among transient interests or to impose on the people the current political fashions. First and foremost a Constitution should provide procedures for operation of a government in varying circumstances, in such a manner that does not defeat the purpose having a government in the first place. Updating the Constitution to make it more pliable to political breezes is not nearly as important as ensuring that it remains firmly rooted in the concept of individual liberty.

    • says

      First off, the two are from slightly dnfiereft eras, the Articles of Confederation were the main operating arms of the US Government before the Constitution was written. Things were not working well under them so the states voted to replace them with the Constitution in the late 1780 s. The Articles have not been valid law since then.The Constitution gives Congress and the President more power then the articles. The Articles didn’t allow the government to tax unless all states (except one) agreed. Henceforth, the country was fairly broke under them. The country couldn’t afford to keep a sizable army either, and the US couldn’t get enough $$$ under the Articles to pay its debts. The Constitution gave the federal government more power then it had.

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