Cass Sunstein Reviews Richard Epstein’s The Classical Liberal Constitution

At the New Republic, Cass Sunstein reviews Richard Epstein’s new book on the Constitution. I have a mixed reaction to Sunstein’s review, agreeing with parts but disagreeing with more of it.

1. Originalism. Sunstein argues that Epstein’s book is not really originalism, because Epstein uses classical liberalism to interpret constitutional provisions and that is not the right way of determining the original meaning. Here I agree with Sunstein, and have said so in various settings.

But what Sunstein omits here is that Epstein’s vision of the Constitution is quite a bit closer to the original meaning than either the New Deal or the Warren Court visions, which Sunstein seems to recommend. Thus, if we should follow the original meaning, Epstein’s view is to be preferred to our constitutional law today which is influenced largely by the New Deal and Warrent Court visions.

2. The Tea Party Constitutionalist. Sunstein portrays Epstein’s book as the theory of the Tea Party. While there is an element of truth to this, there is also much that is misleading. First, Sunstein does not really know what Tea Partiers believe in detail about the Constitution. For all he knows, they may be originalists who believe a more orthodox version of the Constitution’s original meaning. Moreover, as Sunstein recognizes, Epstein is an independent thinker, who does not play to the crowd.

3. Epstein’s Moral Reading. Sunstein argues that Epstein, rather than providing an originalist interpretation of the Constitution, is instead offering a moral reading in the tradition of Ronald Dworkin. I have raised this possibility myself, so I have some sympathy with it. But I think Epstein’s moral reading is far more attractive than Sunstein does. I agree with classical liberalism and I believe that the original meaning of Constitution was “relatively” classical liberal. If I were not an originalist, I would probably defend something like Epstein’s view of the Constitution. Sunstein can attempt to dismiss it, but I believe that it is very persuasive.

4. Precedent. Sunstein ultimately concludes that Epstein’s view should be rejected because it is controversial and is inconsistent with many years of decisions by judges. But Sunstein’s critique here is insufficient. Since the New Deal, most Justices have pursued constitutional interpretations based on their own moral readings of the Constitution, without openly acknowledging that it was they were doing. It is not clear what weight those interpretations are entitled to.

In the end, I find Epstein’s view of the Constitution superior to the decisions reached by several generations of judges who have to a significant extent just made it up. While I do think that the costs of overturning precedents need to be considered, in many cases those costs do not outweigh the benefits of securing a more attractive Constitution.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    While I do think that the costs of overturning precedents need to be considered, in many cases those costs do not outweigh the benefits of securing a more attractive Constitution.
    Mike, I read you all the way to end. Am I reading the meaning of your last sentence correctly: the costs of overturning precedents — do not outweigh — the benefits of securing a more attractive Constitution? (“a more attractive Constitution”)?
    Respectfully, John

  2. Peter Augustine Lawlerpeter lawler says

    Secure a more attractive Constitution. An unfortunate brand for judicial activism? It’s also pollyannish, as if judges could secure for us a classical liberalism that has not been made attractive to democratic voters. Or maybe not, insofar as judges are now making the Constitution “more attractive” on the front of liberty defined as relational autonomy–or freedom to do what you want in terms of a personal identity chosen freely by youself. In any case, it doesn’t convert the skeptical to say more attractive Constitution out loud.

  3. says

    Mike, I came across this item in some of my re-reading of Berger’s 14th Amendment & the BOR’s, referencing L.W.Levy, on “precedent”. “Judicial behavior is sometimes inexplicable … Thus casual and without reasoned judgement, and despite PRECEDENTS to the contrary, the Court began a process of incorporating selected provisions of the Bill of Rights into the due process clause.”
    (Facebook, author of The Tribute)

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