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 of modern conservative thought on constitutional law. Quite simply, it is not possible to ignore the great difficulty that arises between the fidelity to constitutional text on the one hand, and the belief that courts play at most an interstitial role in the interpretation of key constitutional provisions. Just that position as taken recently by J. Harvie Wilkinson in his Cosmic Constitutional Theory: Why Americans Are Losing their Inalienable Right to Self-Governance, which I have already criticized elsewhere. There is of course a serious problem that unelected judges will run roughshod over the key collective decisions in a democratic society. But there is the equally great problem that elected public officials will pass laws that run over the rights of ordinary citizens that societies in good Lockean fashion were organized to protect.

The tension between these two risks cannot be resolved with a wave of the hand. It takes serious work to figure out which areas belong in the public domain and which belong outside of it. It just begs the difficult question to talk about some collective “inalienable right to self-governance,” when the most conspicuous use of the term “unalienable” comes in the Declaration of Independence which contains Jefferson’ loud echo of the basic Lockean position.:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .

To start with this position makes the position of judicial restraint unravel at two levels. As Heriot points out, it is difficult to square a full-throated endorsement of the rational basis standard of review at the constitutional level. It is equally difficult to square it with the modern version of administrative deference under the doctrine of Chevron U.S.A., Inc. v. National Resources Defense Council, Inc.. Contrary to the basic structure of the Administrative Procedure Act, Chevron requires the courts to defer to administrative agencies in the interpretation of their statutes, especially as she points in connection with jurisdictional issues, as Justice Scalia unwisely concluded in City of Arlington v. FCC.

Indeed, the only quibble that I have against Heriot’s argument is that she should be more cautious about the use of the “term” democratic in this context. The term does not appear in the Constitution, which instead states in Article IV, section 4 that “The United States shall guarantee to every state in this union a republican form of government, . . .” Indeed in 1787, the difference stemmed from a conscious recognition of the need for complex governance structures to guard against the majoritarian risks of a popular democracy. Exactly where the line between collective decision and individual choice should be drawn is never clear. In The Classical Liberal Constitution I argued that the only activities that should be on the public side of the line is the provision of public goods, such as defense and infrastructure, and the management of those affairs entrusted to government, wisely or not.

The key point here is that the activities of ordinary firms in private businesses should normally be protected against state regulation except to the extent that remedies are needed to control against the ever present risk of force, fraud and monopoly. It is an open question whether I have succeeded in making this classification work, but I am extremely grateful to Heriot for her endorsement of the general scheme.

In his thoughtful comments on my essay, Alicea stresses more the interpretive strand than the institutional one. But clearly the two point in the same direction, as is evident by the fact that he cites the dissenters in City of Arlington as the source of massive discontent with Chevron’s current deferential synthesis of administrative law. In my view, however, he goes astray in thinking that the key distinction is between the interpretation of text on the one hand and its construction on the other. To be sure, that line seems to have some drawn some attention by modern scholars, but I think that it is of little or no use in dealing with the question of interpretation.

Here’s why. Any question dealing with the meaning of terms will have to deal first with questions of semantic meaning, and then with the question of application in particular cases. Thus we have to figure out what the word “speeding” means to make sense of many traffic laws, and we then have the question of how to apply that term in particular context where there can be both uncertainty as to how fast a particular party was driving, and much dispute over whether the relevant circumstances—weather, traffic, condition of the road—were extenuating or incriminating.

That is surely a key element in any constitutional theory, but it is not the issue that is raised by asking how, for example, the police power—a term found nowhere in the Constitution—fits into the explication for both individual rights on the one hand and constitutional governance structure on the other. The point is that the police power is a compendium of the various justifications that the government can put forward on behalf of its actions in both settings. That question is both different from and in addition to the issues of deciding the meaning of constitutional text on the one hand and applying it in individual cases in the other.

The question, then, is how does a judge identify both the existence of and the applicable scope of that police power? It is here that the connection to the common law is the closest because every single proposition of ordinary torts and contracts law—do not hit another person, do not break your promises—are subject to a range of exceptions that are consistent with the basic fabric of the law. You may hit in self-defense. It may be proper not to perform in cases where the other party has not performed first, or where a promise was induced by force or fraud. The only coherent explication of these elements draws on the classical legal theory that animates the creation of the initial right in the first place. The theory that creates the prima facie case by pointing out the wrongs of the defendant also creates the prima facie case for regulation by pointing out the wrongs of the individual.

There remains the question of just how far the general approach carries over to the American Constitution. Alicea is surely right that the Constitution is a bundle of compromises, but that itself does not negate the force of the basic proposition above, for given the text that we have, it is critical to figure out what, for example, freedom of speech and the free exercise of religion mean in connection with either fighting words or human or animal sacrifice.

The dangers of an undue historical approach is that it looks for these answers in the particular deliberations of the Framers who took the tack of letting these issues be resolved through judicial interpretation as it has been with other general propositions. But the standard defenses mentioned above are not references to some particular circumstances of the Founding period, but reflect as noted above the constant concern with force, fraud and monopoly as the private threats to public welfare. It is only with those in mind that we can make sense of the particular text that we do have.

To be sure, all constitutional texts do not present the same problems. The notion of the police power does not have much relevance to the length of the term for the President, a member of Congress or a Senator. But obviously they loom large in other contexts. The task of constitutional interpretation needs to take into account the particulars of text, and much of The Classical Liberal Constitution, dealing with such issues as cruel and unusual punishments and the right to keep and bear arms is of that sort. But those techniques can only go so far. Either one faces the issues of circumvention, justification and remedy as I outline them in Chapter Three or the resulting constitutional theory will be unequal to the challenge of interpreting the Constitution.

Professor Buckley is “terribly sorry” to have come late to the show. Indeed, as best I can tell, he has missed the entire performance. The question is not, as he suggests “the part where the classical liberal gets to write the Constitution.” No this play is not about some once and future constitution. It was about the one written by the Founders who were in fact classical liberals who believed individual liberty of speech and religion, the protection of private property and the virtues of limited and divided government. It may well be that “no great historical problem has ever been settled by means of a brilliant idea.” Fortunately, the U.S. Constitution does not consist of one great brilliant idea, but of many that were stitched together in a form that allowed them to last.

I will go further. Anyone who reads the debates between the Federalists and the anti Federalists has to be struck about the breadth of their agreement on the proper ends of (a very small) government, notwithstanding their differences over the means to achieve those ends, especially on the details of a federal system, and the explicit protections of a Bill of Rights, which are to this day still a source of honest disagreement.

To be sure, as I insisted in The Classical Liberal Constitution, the Constitution contains some bad ideas, many of which have been removed by Amendment. But the core of the document works because it is animated by a theory that links together key ideas of structures and rights in a fashion that can outlast its skeptics.

Indeed, what is striking about Buckley is that his argument is against the entire approach of American Constitutionalism. Why else would he refer to situations where “one Parliament reverses a prior Parliament.” To be sure, he is right to say that right now, given the current American structure, my first agenda is to repeal a host of bad laws that are already in place rather than to enact new ones. But that is only because lax principles of constitutional interpretation have allowed so many laws to gain root after which they are, as Buckley points out, so difficult to remove. At times that has led me to take the general position that it should be easier to repeal laws generally than to enact them, thus breathing some concrete life into the view that all laws should be examined under a presumption of error.

It hardly follows, however, that the Canadian system that does have a legislative override of judicial review is the best mechanism for dealing with this problem. Thus Section 33 of the 1982 Canadian Charter provides that the Parliament of a provincial legislature may explicitly overturn a judicial decision declaring a law unconstitutional, but at most for five years. There is much to be said on both sides of this debate, because in the abstract it is hard to say whether the legislature or the original judicial decision had the outcome right.

Indeed, much recent legislation, including Obamacare and much of Dodd-Frank, should be unconstitutional in my view. If so, then there is less reason to worry about the question of how to reverse bad legislative decisions. Buckley is right to say that it is wrong to let the President do this unilaterally, which is why Article II, Section 3 of the United States Constitution does contain a provision, all too often ignored of late, that the President “shall take care that the law be faithfully executed.” I share his condemnation of the actions of the Obama administration that has taken Presidential power to new heights. But it hardly follows that the sensible thing is to allow for reversibility of key decisions, for often the Court gets it right.

Therein is the great challenge of government. The world today is not filled with classical liberals, and there is no doubt that many modernists want the very kind of social and economic legislation that they prize. But I still stand by the proposition that the best shot for a long-term sustainable government follows those principles as enunciated in The Classical Liberal Constitution. Indeed our greatest peril comes from the ever greater determination to double down on the constitutional and policy mistakes of the New Deal. Notwithstanding Buckley’s cautionary words, the issues of institutions and interpretation raised by both Heriot and Alicea will not disappear quickly from debates over the scope and meaning of the United States Constitution.

More 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…

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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 with this central theme, my most distressing observation is that the two modern schools of constitutional interpretation do not address the essential challenge of political theory in this fashion. I therefore spend much of the initial section of the book dissecting the two theories of constitutional interpretation—conservative and progressive—that dominate modern discourse of constitutional law, which in oversimplified fashion are these.

First, the conservative view of judicial restraint stresses unduly the need for the judges to take a back seat on major questions of domestic policy and foreign affairs, leaving it to the Congress and the President to divide the key powers of government between them. As a matter of political outlook, most of the conservatives tend to favor, for example, a broad role for private markets and to acknowledge the desirable features of separation of powers on the one hand and of federalism on the other. But by the same token, they do not think that it is the province of the justices to make the central institutional calls on these vital matters, which they think are properly left to the political branches of the government. In so doing, they make the familiar modern mistake of accepting popular democracy as the ideal of government, rejecting implicitly the more structured form of classical republicanism whose complex checks and balances were introduced to counteract the evils of popular democracy that operated by majority will.

That same logic of judicial restraint leads conservative justices to tolerate in large measure extensive forms of regulation of property and contract at both the state and national level, yielding vast scope to the government in the overall control of the economy, even with respect to policies that these justices either reject or doubt on substantive grounds. Again the principle of judicial restraint shapes their institutional role.

To the progressive or liberal justices, the basic challenge takes somewhat different form. By and large they think that separation of powers is a recipe for paralysis in a complex economy that cries out for an activist state. They also believe that the traditional common law rules that governed the law of property, contract and tort have played themselves out in modern times. In their place, they follow the early progressive vision calling for a strong central government to face the challenges of modern times. That program in turn has two separate parts. The first relies on extensive public participation in the deliberative process to set the broad national course on general economic and social affairs. The second looks to group of neutral and learned experts to translate this political consensus into a set of workable rules that can be systematically applied by modern administrative agencies that often operate with substantial independence from judicial, and often, political oversight.

On many particular areas, conservative and progressive thinkers disagree with each other. But the central truth of the modern political economy is that both for different reasons think that the economic and social choices in the United States should be left to democratic and administrative processes. The classical liberal position thus takes issue with both of these points of view, and insists that the great genius of the American Constitution lies in its appeal to a very different political tradition, that counts Locke, Montesquieu, Hume, and Madison as the serious intellectual forbearers of the Constitution.

The Originalist Enterprise—Reconceived

On this general view, the central challenge is to forge sensible institutions that divide and fragment power so that it cannot become the source of political domination or oppression. In dealing with this issue, the entire interpretative structure of the Constitution is critical because if the Framers could not provide clear directives as to the structure of government and the protection of individual rights, the great constitutional crusade for limited government will be stopped in its tracks. To the linguistic skeptic, the endless confusion implicit in key constitutional commands leads to judicial deference to the political branches that then engage in nonstop political horse-swapping devoid of constitutional principle and judicial oversight.

The best elements of constitutional originalism are keenly aware of the dangers associated with the view that any word can have whatever meaning that the justices, the legislators or the president decide to give it. They know that without some check on this exercise, the effort to find a principled basis for limited government will necessarily fail. There is much to be said in favor of this view, so that it become in my view utterly untenable to claim, for example, that the term “commerce” is broad enough to encompass agriculture, mining and manufacture, when in ordinary English the term is used in opposition to these three kinds of activities that our Constitution designedly left to the control of the States. In similar fashion, it is not possible to read the term “private property” as though it encompasses only the right or exclusive possession to land, animals or chattels, when the term has always been used in both common and Roman law —the Framers were far from ignorant to the classical tradition—to cover the rights of use, within the boundaries of nuisance law, and the right of disposition whether by sale, lease, mortgage or gift.

The constant effort to expand the meaning of commerce and restrict the meaning of private property are key components of the Progressive agenda, by combining an expansion of federal power with a contraction of the domain of protected private rights in the second. A faithful originalism is on solid ground when it resists the constant effort to redesign terms so as to turn a classical liberal constitution into a modern progressive one, without going through the process of formal amendment. More generally, there is no necessary connection between the conservative insistence on judicial restraint and classical liberal theory. A Constitution drafted by defenders of limited government should not by interpretation be converted into an open-ended charter of government power.

If the originalists are on sound ground on this issue, they are on far weaker ground if they think that the close examination of the written text, standing alone, is sufficient to unlock the meaning of general constitutional provisions. It is at this point, that the defenders of judicial restraint show insufficient respect to the well-developed interpretive tradition that treats any constitutional text as creating the initial presumption whose gaps are filled in by a conceptual analysis that links the basic textual provisions to the larger constitutional purposes of limited government. These ends are, of course, the control of force and fraud, the common defense, and the provision of public goods, such as roads and other infrastructure, whose creation was contemplated under the Constitution.

It is therefore necessary to recognize that virtually every constitutional text leaves unstated three critical questions for its implementation; anticircumvention rules, justifications, and remedial choices.

First, constitutional limitations are intended to prevent abuse by the political bodies. It is therefore necessary to read the text broadly enough to prevent government from enacting artful measures to circumvent the constitutional limitations on its powers. If the states cannot impose taxes on imports, they cannot be allowed to impose special taxes on importers that could achieve the same end. If the government is not allowed to regulate speech, it cannot be allowed to subject it to heavy taxation. If the government cannot take property, it cannot burn it to the ground, and leave the rubble in the possession of its former owners.

By the same token, it is critical to recognize that in the constitution (as in the ordinary law of contract and tort) the basic rules take the form of presumptions not absolute, allowing the government to justify its actions in particular cases. People should prima facie keep their promises, but not when induced by force or fraud. Individuals should not use force against others, except in cases of self-defense. One of the great vices of modern constitutional law is that the justices and the commentators often see constitutional law as a self-contained body of rules and principles divorced from the rules of private law that explain how ordinary people interact with one another.

This explicit linkage between public and private law brings two critical propositions into view. The first is that the same principles of interpretation have to be brought to bear on the great constitutional guarantees, which now become presumptions not absolutes. Historically, this was done by the articulation of systematic rules that governed the police power, which becomes the main axis along which constitutional doctrine develops on all matters of structural constraint and individual rights, even though those two words are not found anywhere in the Constitution.

The second point is that it should be possible to give principled content to the scope and function of the police power. The standard classical liberal formulation of this doctrine spoke of the need to protect the “safety, health, morals, and general welfare” of the population. Broad as these terms were meant to be, they never gave the state the general power to pass “labor laws,” which were rejected for their excessive paternalism or for their eagerness to treat competitive harm as though it were the type of wrong that the government was in a position to prevent.

The question here is how to choose and defend one consistent interpretation. All too often, the recognition that the constitutional text has some play in the joints is often taken as creating “a living constitution,” which lets the Supreme Court fashion exceptions to the original constitutional norms in ways that reflect our modern sensibilities, so that comprehensive regulation of the economy or the use of real property may properly protect against competitive harms on the one hand, or the loss of views on the other.

Unfortunately, the living constitution approach misunderstands how constitutional justifications should be fashioned. The standard exceptions in the private law are in essential outline the same today as they were in ancient Rome and the early common law. Such notions of assumption of risk and self–which lie at the root of the police power are not new conceptions introduced on an ad hoc basis. What could turn out to be novel, of course, are the types of actions that constitute the threat or use of force.

Yet matters belong in context. The ability of the government to control cyberfraud and cybertrespass should be unquestioned. In contrast, the ability of government to suppress truthful speech or to license forced entry onto the land of others (which is allowed to labor organizations under modern law) cannot be read into any principled reading of the police power. Similarly the constant effort to tell people whom they must deal with under either the National Labor Relations Act or the Civil Rights Law represent a major expansion from the earlier police power jurisprudence, which concentrated in licensing and preventing actions, like the use of fireworks that could cause public nuisances.

Third, there is nothing in the Constitution that states the remedies that should be applied in the event of a constitutional violation by the government. It is therefore necessary to decide whether specific performance should be required, whether the state should be enjoined from certain activity, or whether some measure of damages or compensation should be paid. There are no distinctive constitutional principles that govern these questions. So that the implementation of a coherent remedial structure depends on carrying over to the public context the rules that are used to organize remedies in private disputes. Once again the great difficulty of constitutional interpretation is that the text necessarily poses many critical questions to which it does not necessarily supply explicit answers.

Changing Times

It should not be supposed that a Constitution that hews to these principles is unable to respond to serious modern challenges. The classical liberal judges of the “old court” that operated roughly speaking between the end of the Civil War and the great constitutional transformation of 1936-1937 was able to deal with the major issues that a narrow libertarian theory cannot. The imposition of taxes, the provision of public infrastructure, the use of the condemnation power, and the regulation of monopoly are all standard exercises of government power that are inconsistent with strong libertarian theory, but which are explicitly incorporated into the Constitution—which is why this book is called “The Classical Liberal Constitution” and not The Libertarian Constitution.

What is characteristic of most of the judicial decisions of this period was their willingness to face up to the greatest challenge of their time. The general issue of rate regulation preoccupied the Supreme Court during this period, and the justices (often unanimously) worked long and hard to prevent the accumulation of monopoly power on the one hand, without committing the equally great sin of confiscating private wealth under the guise of regulation. It was the New Deal Court, with its great attachment to state-sponsored monopolies that abandoned the old system so that regulation now became the device to prop up monopoly and not to limit it. Similarly in the area of antitrust, the classical liberal judges were relentless in their pursuit of cartel and other monopoly arrangements, but were careful not to convert the antitrust laws into tools for creating and protecting monopoly power, a task that the progressive justices all too eagerly embraced. Similarly, the classical liberal justices understood the need for taxation, but were equally aware that it was essential to put limits on the structure and objects of taxation lest it become a device whereby governments could create huge transfer programs among states and among individuals that has unleashed a veritable deluge of special interest legislation today. And it was the classical liberal justices who sought for the most part to curb the use of state regulatory power as it applied to economic and land use regulation.

In making this defense of the classical liberal constitution, it is important to recognize the imperfections of a doctrine that tolerated slavery at the outset of the nation and fostered various forms of institutionalized segregation after the Civil War. Needless to say these political compromises are totally at war with classical liberal theory. Similarly, many justices before modern times used the “morals: head of the police power to expand government control over personal conduct, particularly on matters of marriage and sex of which the most egregious example is not the contemporary opposition to gay marriage, but instead remains the systematic suppression of polygamy in the territories, which led to the forfeiture of extensive Mormon holdings to the state.

It is critical, moreover, to note that the basic principles of limited government apply not only to issues of separation of powers, and federalism, but also to such matters as religious freedom and charitable associations that do not have narrow economic ends as their sole objective. Finally, it is critical to note too that there are many areas today where both conservative and progressive justices exhibit a high degree of agreement in ways that fully respect classical liberal principles.

On the structural side, the aggressive use of the “dormant commerce” clause has served to protect national markets against state balkanization even without explicit textual warrant. In my view these deviations from original intention should be respected insofar as they satisfy two conditions. First, they are by long usage embedded into the national culture, and second, they are consistent with classical liberal principles. It is this dual interplay that makes so much of constitutional interpretation difficult.

Similarly on the individual liberty side, the great success of the First Amendment is that in most ways (except for the Progressive dalliance with campaign finance regulation), the text is interpreted just as the classical liberal would have it. Speech is read broadly to avoid the risk of government circumvention. The police power justifications deal with the control of force (threats of assault or violence), fraud and defamation, and the application of the antitrust laws to prevent illegal combinations in restraint of trade. But simple public dislike of an offensive position is never justification for state power. Finally, the use of remedies is carefully guarded to avoid, for example, injunctive relief in most defamation and invasion of privacy cases, but not for the protection of business trade secrets from public disclosures.

Yet by the same token, the great failures of modern time cannot be avoided. The willingness of the Court to let ObamaCare pass constitutional muster represents a three-fold failure. There is no willingness to attack the statute for its massive interference with freedom of contract, for its massive overreaching under the commerce power, and for its disregard of the essential limits on the federal power of taxation. That statute is emblematic of all that is wrong with both the conservative and progressive traditions of constitutional law. Only an explicit embrace adoption of the Classical Liberal Constitution at all levels of government can stop the slide of the United States into long-term stagnation and political discord.

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 fabric of American Constitutional law.

The Exclusion of Women and Blacks

The claim, as they develop it, runs into difficulty because some of the principles that worked their way into the constitutional were less than ideal. Toward the end of their paper they hone in on two exceptions to the basic rule, namely “The Exclusion of Blacks and Women” from their rightful place in the Constitutional order. This pairing is odd in the extreme because the Constitution says nothing about the status of women at all. The key text dealing with voting in the House of Representatives, in Article I, Section 2, Clause 1, takes no stand on suffrage, but contents itself with a devolution program that provisions that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (There was no parallel issue for elections to the Senate or the Presidency, which were done by the state legislatures and the Electoral College respectively.) But there are, for example, no independent federal prohibitions on the election or appointment of women to any position created under the Constitution, including the President of the United States. To be sure, the Constitution did not require the participation of women in the electoral process until the adoption of the Nineteenth Amendment in 1919.

The constitutional history on the question of race is a different matter altogether for that is an issue on which the Constitution has a lot to say. But in their effort to link originalism to the good Constitution, McGinnis and Rappaport are not faithful to the principles of interpretation that lie between the originalist project. No system of interpretation, originalist or otherwise, is intended to purify the Constitution of any structural errors in judgment that were incorporated into the body of the text. Interpretation is not covert for legislation. Quite the opposite, the only thing that a sensible theory can do is to be sure that the implementation of any given provision is consistent with the dominant text that is subject to interpretation.

Indeed one test of a sound theory of interpretation is that it is as faithful in its implementation of bad and immoral texts as it is of good and enlightened ones. And just that principle is showed clearly in looking at one of the most odious texts in the Constitution, dealing with the question of fugitive slaves, without ever deigning using the word “slave:”

Art. IV. Sec. 2, Cl. 3 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The Clause is inserted into the Constitution right after the Extradition Clause that in parallel language states:

Art. V, sec. 2, cl. 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Both of these clauses are exceedingly well drafted and leave no room for the imagination. A consistent originalist will apply the same technique to reading them both, and see in them categorical obligations to return both slaves and criminals to their owners in the one case and the proper state authorities on the other. Put in a different way, the Constitution explicitly treats slaves, who have done no wrong, and criminals, who may have done serious wrongs, in exactly the same fashion. Odious, but clear.

Accordingly, there is in my view no interpretive dodge that allows for Courts to soften the constitutional obligation for fugitive slaves while keeping it robust and in tact for fugitive criminals. Nor in my view is it possible to raise any valid constitutional objection to the Fugitive Slave Act of 1793, which created a federal system for the recapture of slaves, and, by invoking the Supremacy Clause, negated all state laws that purported to soften the effect the Constitutional provision by giving sanctuary to escaped slaves. Nor when that onerous regime started to unravel, was there any constitutional objection to the passage of the still harsher regime of the Fugitive Slave Act of 1850, passed as part of the Compromise of 1850 in an effort to keep the Union together.

The Limits and Uses of Interpretive Theory

The question is whether this sordid history should embarrass the defenders of any form of constitutional originalism, and the answer to that question is no. The task of originalism is one of interpretation. The point of interpretation is to develop norms that allow for the effective implementation of a scheme so as to prevent slippage between the general plan of the party who enacted the law and the application of that law by other officials, be they members of the Executive Branch or the Judiciary. That problem is raised to its highest level in constitutional matters, but the problem of fidelity to law exists in the interpretation of every document, whether it is found in a constitution, statute, regulation or private contract.

The public official that chooses not to enforce these laws while they are in effect faces a serious crisis of conscience in dealing with the Fugitive Slave laws, and for that reason may well decide to resign his office rather than enforce a law that he thinks, and correctly thinks, violates the core position of any system of natural law that affords to all persons free and equal status in the state of nature, which slavery profoundly denies. Yet no theory of interpretation can cure these fundamental defects in world view. The originalist theory of interpretation on constitutional matters has to live in the bed that the Framers have forced them to lie until those laws are changed.

In an odd way, the predicament that any judge faced in the application of odious constitutional provisions like the Fugitive Slave Clause is a tribute to the power of the originalist modes of interpretation. It is all too fashionable today to insist that any particular constitutional text can be endowed with whatever meaning we think that serves some important social function, including the creation of a good society, or, to use the words of McGinnis and Rappaport, to show that “originalism” generates constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories.”

The Gun Control Example

I think that this is wishful thinking. I am at a complete loss to understand why that particular claim should be regarded as true in the absence of firm linkage to some constitutional text. What makes it so difficult to evaluate their claim, moreover, is that McGinnis and Rappaport do not offer in their article any particular case that proves the general theory. They do, however, refer at the outset to Justice Scalia’s originalist arguments in Heller v. District of Columbia (2008), which struck down a District of Columbia gun control law that forbade the possession of a firearm in the home for use for self-defensive purposes. The text of the Second Amendment reads:

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 initial phrase which refers to the security of “a free State” is correctly understood as referring to the states of the United States, and not to some abstract state anywhere on the globe that is protected by some universal provision of justice. The Framers were well aware of the role that sovereignty played in domestic and international affairs, and thus adopted an Amendment that was intended to prevent the federal government from encroaching on the the power of the states over their own people, and thus had no application to the District of Columbia.

Suppose, however, that all this is wrong, and that Justice Scalia got it right when he struck down the statute under the Second Amendment. How do we know that this leads to good social consequences in light of the fierce public debate over the soundness of gun control laws. The core of that debate is over means/ends relationships. Neither side to the debate thinks that murder or mayhem are social goods. The sole question is whether the gun control laws advance the end of a safer society by removing guns from general circulation, or whether they frustrate that end by taking guns out of the hands of law-abiding individuals, giving criminals a wider berth for action. That empirical debate cannot be resolved by a correct rendition of the Second Amendment.

Indeed in most cases where the Constitution authorizes various powers of regulation, it remains an open question of whether these powers are exercised for good purposes or for ill. Within this framework the traditional arguments over originalism continue to hold sway. Does the Constitution create a regime of limited federal powers that reserve extensive areas of autonomy to the states? And, with the passage of the Fourteenth Amendment, does the Federal government now have greater power to ensure that the states do not encroach on either the “privileges or immunities” of the citizens of those states protected under the Fourteenth Amendment. There are many difficult issues of interpretation that must be resolved to answer these questions. I offer my own qualified version of originalism in my new book The Classical Liberal Constitution. But for the moment, it seems that any appeal to supermajority voting in the manner of McGinnis and Rappaport is not likely to resolve those difficulties.

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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

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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 analyzes and discusses the Patient Protection and Affordable Care Act and the Dodd-Frank financial reform bill as egregious extensions of these practices.

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.

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 adapted to the end in view.

This general formulation of course conceals much, because it leaves unresolved two major inquiries.  First, how best to define each of these stated ends?  Second, what goodness of fit is needed between the means chosen to achieve that stated end?  A uniform approach to this topic would require that the choice of both ends and means should be roughly parallel across separate constitutional guarantees, so that what is the sound test for the regulation of property or contract also works for the regulation of religion and speech.

Unfortunately, legal doctrine has moved sharply in the opposite direction.  On economic matters, for example, courts are quite happy with a legal arrangement that allows economic regulation that serves the “public interest, convenience and necessity,” for it gives administrative agencies vast powers to pick those means appropriate to advancing those the ends.  On matters of speech and religion, the exact opposite mind set has been adopted.  The permissible ends in question are narrowly circumscribed, and the means chosen to achieve these ends must be narrowly and precisely tailored to deal with the question.  The deferential “rational basis” inquiry on matters of property and contract is worlds apart from the searching “strict scrutiny” inquiry often brought to the regulation of religion and, especially, speech.

The strongest indictment of modern constitutional law is that polarizing tendencies are wrong.  In this context, I shall examine the unpardonable laxity of judicial review on such questions as the public use limitation in eminent domain cases, embodied in such decisions as Kelo v. City of New London, which grants public official enormous discretion in setting the purposes for the condemnation of privately owned land.

Yet with the most elusive head of the police power, that dealing with matters of public morals, the pendulum has swung very far to the other side in cases of speech.  Activities that once fell easily into the morals category now receive extensive constitutional protection as privileged forms of speech, no less. To make this point, I shall examine two recent Supreme Court decisions, both of which seem far too cavalier in their treatment of the state’s interest.  I refer here first to Snyder v. Phelps, and Brown v. Entertainment Merchant Association.

Snyder v. Phelps The disjunction between the common law and the constitutional law of free speech is put into high relief in Snyder v. Phelps, about which I have already written extensively.  The odious background to this case is by now well known.  Lance Corporal Matthew Snyder was killed in action in Iraq, and was buried in Westminster, Maryland.  At the time of his death, the Westboro Baptist Church, held a demonstration on public lands some 1000 feet away from the burial site in which they chanted and sang songs in an effort to dishonor the memory of the man.  They were out of view and earshot of the funeral.  Their earlier press release, which said, “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor— for a fag nation cursed by God . . . .”  The Church claimed that Corporeal was gay, when in fact he was not. “

Snyder’s father suffered serious psychological damage as a result of this incident.  He then brought actions for defamation and intentional infliction of emotional distress, where the latter means more or less what it says.  In the District Court, the defamation case was dismissed on the ground that this expression of religious distaste would not have subjected Corporal Snyder to public hatred or scorn.  Incorrect, as a matter of common law.  The statement about sexual orientation is not a statement about opinion, but one of fact.  At common law the distinction mattered, because statements of opinion were insulated from suit, but false statements of fact were not.  Those common law rules also made it very difficult to sue for reputational losses to the deceased, because they did not have future business or social dealings that could be disrupted.  But defamation cases brought by family members, whose associational arrangements could have been disrupted, were in fact allowed, and general damages—i.e. damages that are not tied to specific proof of a lost relationship—were also routinely allowed, albeit for smaller sums of money.  The private law gave little dispensation for false statement of facts.  The modern constitutional law of defamation does.  This part of the case was not appealed.

Intentional infliction of emotional distress has long been a staple of the common law, but here too the situation is more complex than might appear at first blush.  No one thinks that this tort should be allowed for most efforts to embarrass other individuals.  In those cases where there has been a negligent infliction of emotional distress (as by watching the death of a child run over by a car) the usual rule is that only close relatives can bring the suit, and only if they have direct sensory observation of the loss.  With deliberate harms, there is a willingness in some cases to relax those tight causal conditions.  Thus, when left to the jury, it awarded $2.9 million in actual damages and $8 million in punitives, which seems right on liability, but overgenerous on damages.

The Supreme Court knocked out these damages by resorting to a simple-minded paradigm of free speech cases that stated that since this speech was a “public, not private concern” the Church’s speech “occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’”  Unfortunately, this approach takes a certain kind of moral blindness not to see the difference between this sorry episode and the speech involved in a political debate over the future of the country.  The common law rules that always held that both falsity and latent aggression were reasons to allow damage actions after the fact, but not injunctions before the fact, reflect a very different set of sensibilities, and Chief Justice Roberts at no point explained why his view was better than the common law position.  Recall that the First Amendment protects freedom of speech, which does not mean that all speech is free of bad consequences.  The libertarian concern with force and fraud applies to speech as well as action, and it makes a lot of sense in this context to read the First Amendment as a protection against government encroachment into areas of protected political debate and artistic expression. But it hardly follows that this commitment offers courts a warrant to disregard the common law categories that have stood the test of time.

All of this does not mean that the Court was necessarily right to let the judgment stand, although I would have done so with reduced damages.  But it is close.  Snyder does not fall easily within the category of either defamation or intentional infliction of emotional distress, and thus lies at the edges of protected speech.  But the rationale given matters not only for the case at hand, but for the next case on the list, and here the prognosis is not so optimistic. The wrong major premise can lead to wrong results in other contexts and just that has happened in the aftermath of Snyder.

Brown v. Entertainment Merchant Association  Exhibit A of this proposition is Brown (as in Governor Jerry Brown) arose under a California law dealing with violent video games. Justice Scalia describes the statute’s reach as follows:

[The California Law] prohibits the sale or rental of “violent video games” to minors, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

The California law does not prohibit access of these video games to minors, but only their sale.  It does not explicitly address the level of parental control over the access that minors have to these games, but clearly assumes some degree of parental control on that matter, which is outside the scope of the First Amendment, whose prohibitions are only directed to governments.  Try as I may, I cannot find anything about this statute that is particularly offensive or ill-conceived.  It only poses a modest barrier to the use of these games, and thus works in a fashion that will tend to reduce the exposure of minors to these games, leaving untouched their use by adults.

As a matter of morals regulation this statute would not raise the slightest peep from any nineteenth century judge.  Any judge who would let the legislature keep bowling alleys off limits to the young would rest easy with this statute on the books.  But to read Justice Scalia’s opinion, one would think the entire edifice of freedom of speech would collapse of its own weight if this statute were allowed to remain on the books.  Justice Scalia relied explicitly on the Supreme Court’s 1952 decision on Joseph Burstyn, Inc. v. Wilson, which rightly struck down a general censorship rule that required all films to go through a preclearance before being released.  The more modest reach of the California statute makes the two cases readily distinguishable.

For his next move, Justice Scalia adopts the rigid proposition that the categories of speech that the government may regulate are in essence closed.  It is instructive to quote his exact words:

The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.

This astonishing passage is a peculiar mix between high principle and historical accident.  On the former, Justice Scalia does not explain the generality of his principle.  For example, defamatory utterances seem to fall within the category of speech protected by content for it does not involve obscenity, incitement or fighting words.  Yet making this conduct tortious is perfectly consistent with the general libertarian principle that has never protected either force of fraud.  By the same token, the publication of a trade secret does not seem to fall within these three categories either, and it seems impossible to claim that the First Amendment requires this large field of law to bite the dust. His most basic principle is thus utterly undefended.

Nor are the confusions in this text removed by the appeal to history.  Each of the particular exceptions mentioned had to be endorsed or accepted by some court.  And what they did was to ask about making some kind of category-by-category cost/benefit analysis that he disparages.  Yet at no point does Justice Scalia indicate what principle allowed those cases to proceed once the categorical approach is rejected.

He could have done better.  In dealing with incitement and fighting words, the best explanation is the libertarian principle that treats the threat of force as tantamount to the use of force.  But that explanation fails in the case of obscenity, which has always been justified under the morals head of the police power.  Why then is the combination of these two ideas so weak that that this form of violent speech must remain unprotected?

Yet once the strict scrutiny test is unleashed, no evidence that is modestly probative can receive the slightest weight, such that legislatures which are allowed to introduce economic regulation that offends every known principle of economic rationality are put to such a high standard of proof that they are doomed to fail no matter what the state of the record.

In dealing with these issues, an anxious concurrence by Justice Alito concedes that the ends in view are valid subject of regulation, but nonetheless thinks that this particular statute must fall on the grounds of vagueness of its key terms “deviant or morbid.”  I confess to a huge distaste to all of these general vagueness arguments, which, if consistently applied, would place huge barriers to all sorts of regulation.  The argument seems hollow, for if these two words are unacceptably vague, it is hard to imagine what suitable words could be substituted in their place.  In addition, it is hard to think that any of the video games caught by the statute fall into some kind of gray area, given the repetitive and mindless violence that they portray.  It seems most unwise to strike down a statute because of uncertainty at its edges when there is a clear common agreement at its core.

In sum, one does not have to agree with every assertion in the long and learned dissent of Justice Thomas to think that any modest form of originalism would not find the slightest difficulty with this particular statute.  There has long been a category of disgust, which now receives additional attention, in the popular and learned media, which points to its importance for human survival. The video games differ at least in degree if not in kind from other media, and the effort in the state to look at the work “as a whole” marks a serious attempt to distinguish Biblical violence from the video games.  It is a bit messy at the edges. But the for the courts that are willing to tolerate wholesale delegation to administrative bodies in economic affairs, the constant flyspecking on whether this statute is over or under-inclusive is the wrong standard.  The California statute deals with minors and violence, both of which lie at the heart of the police power.  The Court went overbroad in dealing with this issue.

Conclusion  in my view both Snyder and Brown indicate ways in which a rigid and absolutist logic has led the Court seriously astray in two cases. The common law system was always based on a set of rebuttable presumptions that are the best blend of predictability and flexibility possible.  The failure to understand or apply distinctions that are strongly grounded in the classical liberal tradition represents a mistake of constitutional magnitude.

IN Snyder and Brown, the role of force and fraud is reduced in cases where the imposition of some liability would pose not the slightest threat to the types of speech that deserve protection.  The only question is how far bad theory will continue to lead the Court astray.  Already in United States v. Stevens, a majority of the Court (with Justice Alito in his lone dissent) took a far too hostile view toward statutes that were directed against depictions of animal cruelty, and in United States v. Alvarez, the Court will have to face whether the Stolen Valor Act, which imposes punishment for the false display of conduct medals, without proof of actual injury can withstand a First Amendment Challenge as I have said on two occasions (here and here) it does.  The simple proposition here is that the Supreme Court should give no special solicitude to speech that is fraudulent, cruel or violent.  There are, of necessity, some issues around the edges, but none that justify the heavy artillery of strict scrutiny or a wholesale repudiation of the common law rules that have long been used to regulate speech.

Responses

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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