Reviewing Epstein’s Classical Liberal Constitution

Today the Wall Street Journal published my review of Richard Epstein’s The Classical Liberal Constitution. I found much to like in the book, but believed that it did not succeed at its central claim—showing that Constitution is in essence applied classical liberalism. That claim is crucial to the ultimate persuasiveness of his book, because Epstein believes that classical liberalism should guide the interpretation of provisions that he finds ambiguous and tells us which precedents should be keep and which should be discarded. Thus, for Epstein even if a precedent did not capture the text of the Constitution, it should generally be honored if it advances classical liberalism.

I compared the book to the best book on constitutional theory of the twentieth century, Democracy and Distrust by John Hart Ely,  for its ambition and relentlessness of argument. But it shares a similar flaw with that magisterial work. Ely argues that the constitutional interpretation should be focused on promoting and reinforcing democracy. But he never shows that democracy was the single sun around which the Constitution orbited. Similarly, Epstein fails to show that classical liberalism is the skeleton key that unlocks the meaning of the Constitution.

As I say in the review:

To be sure, the Framers were very much aware of Locke, and liberalism is central to the Constitution’s meaning. But Mr. Epstein never shows that Locke’s liberalism tracks his own or that it was the dominant influence on the Framers. Other influences included Montesquieu, who stressed a balance of powers, and some of the Framers adhered to the civic-republican tradition, whereby government was to cultivate virtue. What is more, the Constitution reflects the lived experience of Americans and their forebears. The Bill of Rights derives in part from quarrels among English religious sects and the abuses of the Star Chamber. The very wording of the Bill of Rights often expresses this long history.

And some of Epstein’s interpretations are strange, particularly his interpretation of the Second Amendment. As I also say in the book review:

A case in point is the Second Amendment, which declares: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The Supreme Court recently declared that the amendment protects the right of citizens in the District of Columbia to possess a handgun in their homes. Mr. Epstein rejects this decision on the grounds that the District is not a “state.” But the amendment’s preamble, in which the phrase “a free State” appears, announces a political proposition. It thus likely refers to political entities in general, not specific ­jurisdictions, and Mr. Epstein provides no historical or scholarly support for his novel suggestion.

Epstein only intermittently takes advantage of the wealth of new scholarship on the original meaning of specific provisions of the Constitution. He does not benefit enough from this great collaborative effort among law professors that represents the most hopeful trend for restoring the Constitution. Nevertheless, the book is for the most part very well argued and represents a considerable achievement. Its one substantial limitation is that it will not persuade anyone who does not share his premise about the simple origins of the Constitution in classical liberalism—a premise that is not sufficiently defended.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. gabe says

    Why do you suppose that Epstein (whom I usually appreciate) would say something as downright silly as “D.C. is not a state so the 2nd does not apply?
    Rather curious, wouldn’t you say?

      • gabe says

        OK, thanks – but am not buying it!

        ” Oddly enough, before the adoption of the Bill of Rights, basic federal-state relations—not individual rights—were the Constitution’s focus.”

        He seems to rest his argument upon structuralism and makes a calim that this was paramount in the minds of the Framers.
        A little too clever, I think. Remember that during the debates on Ratification it was almost universally demanded that protection for individual rights be added to (actually embedded in) the Constitution – thus the Bill of Rights. There are other points but I think this one shows his purpose.

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