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.

Richard Epstein Responds: Personal Liberty, Private Property and Limited Government Are Still the Keys to National Prosperity and Success

I should like to thank my three commentators for their observations on my lead essay. Those remarks by Gail Heriot (my former student, I am proud to say) and Joel Alicea are decidedly in the friendly camp, and thus need little response. The comment by my friend Frank Buckley shows a good deal of Canadian angst about my interpretation of the United States Constitution, and will require a somewhat more detailed response. Let me take up the three authors in order. My first observation is to thank Heriot for putting into high relief what we both see as the central tension…

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The Skeptical Constitution

I’m terribly sorry. I seem to have come in late. I missed the part where the classical liberal gets to write the constitution. I know that a good many classical liberals, including my friend Richard, have offered their thoughts on the subject, but that’s not how I understand constitutions to be made. Sir Lewis Namier thought…

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Constitutional Compromise and Classical Liberalism

Across the conservative legal movement, there is a reassessment of the principles that have guided legal conservatives since the end of the Warren Court. Ideas that were once orthodoxy are now open to question. At the level of doctrine, the movement’s longstanding defense of Chevron has been replaced with the deep unease evinced by the…

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Due Deference to the Political Branches

Recently, I heard an observation about liberals and conservatives that rang true to me: Modern liberals tend to view themselves as freethinkers no matter how rigidly they adhere to liberal orthodoxy. Modern conservatives often display the opposite vice, imagining they speak for the average citizen even when election returns contradict that belief. One consequence is that…

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In Defense of the Classical Liberal Constitution

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What follows is a short account of the central argument of a long book, of some 700 pages, that seeks to cover the basic outlines of constitutional law in three major areas: interpretation, structure, and individual rights. The theme that unifies these three separate topics is how they all relate to the quest for limited government. That task requires an interpretive method and an institutional design that is strong enough to allow for government rule, but not so powerful that it suffocates the very individuals whose liberty and security it is intended to protect. Conservative, Progressive, and Classical Liberal In dealing…

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Responses

The Skeptical Constitution

I’m terribly sorry. I seem to have come in late. I missed the part where the classical liberal gets to write the constitution. I know that a good many classical liberals, including my friend Richard, have offered their thoughts on the subject, but that’s not how I understand constitutions to be made. Sir Lewis Namier thought…

Read More

Constitutional Compromise and Classical Liberalism

Across the conservative legal movement, there is a reassessment of the principles that have guided legal conservatives since the end of the Warren Court. Ideas that were once orthodoxy are now open to question. At the level of doctrine, the movement’s longstanding defense of Chevron has been replaced with the deep unease evinced by the…

Read More

Due Deference to the Political Branches

Recently, I heard an observation about liberals and conservatives that rang true to me: Modern liberals tend to view themselves as freethinkers no matter how rigidly they adhere to liberal orthodoxy. Modern conservatives often display the opposite vice, imagining they speak for the average citizen even when election returns contradict that belief. One consequence is that…

Read More

Richard Epstein Responds: Personal Liberty, Private Property and Limited Government Are Still the Keys to National Prosperity and Success

I should like to thank my three commentators for their observations on my lead essay. Those remarks by Gail Heriot (my former student, I am proud to say) and Joel Alicea are decidedly in the friendly camp, and thus need little response. The comment by my friend Frank Buckley shows a good deal of Canadian…

Read More

Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is that the Constitution and its Amendments have been battled-tested through a rigorous adoption process that at every point along the way required some level of supermajority support—a requirement that makes it more likely that only sounder provisions are likely to work their way into the…

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Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

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Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real…

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The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of…

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Design for Liberty: A Conversation with Richard Epstein

In this conversation, Liberty Law Talk discusses with Professor Richard Epstein his new book Design for Liberty: Private Property, Public Administration, and the Rule of Law. Professor Epstein notes that the rule of law requires substantive commitments to generality in application and that it must ensure predictive efficacy if private property and commerce are to flourish. Unfortunately, much of the American Constitution's attempt to provide these commitments has been lost in the abuses worked by the administrative state and the judiciary's refusal to scrutinize legislation and rule-making that slights the takings and contract clauses of the Constitution. Professor Epstein also…

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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…

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The Decline of the Morals Head of the Police Power Under the First Amendment

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It is now commonly understood that all areas of constitutional law consist of an uneasy amalgam between explicit constitutional guarantees on the one hand and the implied limitations on those guarantees on the other.  The textual guarantees are extended to private property, contract, religion and speech.  The implied portion of the analysis is—or more accurately, was—captured in the standard formulation of the police power, under which each substantive guarantee was, and properly so, subject to regulation for the protection of “the health, safety, general welfare and morals” of the population at large, so long as the means chosen were reasonably…

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Protecting the Islands of Speech

Professor Epstein argues that all textual constitutional rights — most particularly, those pertaining to contracts, property, speech, and religion — should be protected by the same regime.  This argument has intuitive appeal, but he does not defend it, at least not here.  Why should we protect contracts and property as much as speech or religion? …

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“When the facts change, I change my mind”

Professor Epstein is right to shine a light on the Court’s decisions and analysis in the recent free speech cases, Snyder v. Phelps and Brown v. Entertainment Merchant Association. In each case, the Court embraced unnecessarily absolutist interpretations of the constitutional right to free speech. I say “unnecessarily” absolutist because, in my opinion, the Court’s…

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