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.

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Thick Originalism as a Constraint on Ideology

My last post described the most important recent trend in originalism—the thickening of meaning by reference to the pervasiveness of the Constitution’s legal background. Legal rules at the time of the Framing help clarify its ambiguities and make more precise its occasional surface vagueness. The most important implication of the thickening of originalism is to challenge ideologically comprehensive originalism—the use of an ostensibly originalist vision of Constitution to suggest that it almost invariably favors one ideology.

By putting the Constitution’s legal background front and center, thick originalism makes a comprehensive victory for any ideology less likely for three reasons. First, the legal background is a complex one given by the tradition of law, including the common law and in some cases the law of nations over centuries. This law is very unlikely to line up with any contemporary ideology, not least because of complexity and its accretion in a past even more distant than that of the Framing itself.

Second, in one sense the common law background of the Constitution is distinct from and in opposition to the Enlightenment thinking that gave rise to modern ideology. Bernard Bailyn, the famous historian of the ideas behind the American Revolution once stated: “English law—as authority,  as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.”

The Constitution itself was product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment.

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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.

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Friday Roundup, March 7th

This month's Liberty Law Forum is a discussion of the Classical Liberal Constitution: Contributions from Richard Epstein and Frank Buckley, with upcoming responses from Gail Heriot and Joel Alicea. The current Liberty Law Talk is with Don Devine on his new book, America's Way Back. We have a very timely review essay this week from Naval War College professor Karl Walling: The Problem of Military Intervention. Did you know that when it comes to healthcare, individual choice is overrated? I'll let Ezekiel Emanuel tell you why. I wonder, though, why those with means are placing themselves and their families in concierge medical care? A…

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Conference on Richard Epstein’s The Classical Liberal Constitution

Last Monday, a conference was held at NYU on Richard Epstein's new book The Classical Liberal Constitution.  Epstein's book is in some sense his magnum opus -- at least as to constitutional law -- setting forth in 700 pages his classical liberal view of the Constitution and its development.  It is a beautiful book and well worth reading. My presentation at the conference discussed whether the book could be classified as following an originalist methodology.  I conclude that it cannot.  The entire conference is available on video.  For the panel I participated in see, here.  (I start talking at the 30…

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Liberty Forum on Originalism and the Good Constitution

I wanted to remind readers of this past month's Liberty Forum on the new book by John McGinnis and me, Originalism and the Good Constitution. The first essay by McGinnis and me set forth the basic claims of the book. Richard Epstein then wrote a critique here.  Unfortunately, Epstein misunderstood our argument -- assuming that we believe supermajority enactment rules always lead to good results, even if a class of voters, such as blacks, is excluded from the electorate.  But as we stated in our original essay and pointed out in our response here, our argument is that only appropriate supermajority enactment rules…

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Criminal Misconduct and Roving Bandits: The Campaign Against JPM

Richard Epstein has a terrific piece on the various investigations and prosecutions of J.P. Morgan here. “The Department of Justice,” he writes, “ is bringing to heel a bank that came into two major mistakes. First, the bank did business with the federal government. Second, it was regulated by it.” That just about sums it up. The piece is a wonderful expose of the sordid, extortionate practices that have come to characterize “law enforcement” in the financial sector.

You begin to wonder whether there can still be a legal practice called “white collar defense.” Given the hammers the government wields over the targeted entities, there is no viable defense; it’s more like begging for mercy, which is best conducted by people who are good at waving white flags and have personal friends at the various government agencies. This may help to explain the fantastic sums that are now flowing in the direction of federal agencies, Fannie, and Freddie. The targeted companies have to settle at almost any price.

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The New Deal Constitution at 75

This past Thursday marked the 75th anniversary of two foundational New Deal decisions, handed down on Monday, April 25, 1938: Erie Railroad v. Tompkins, and United States v. Carolene Products. The American Enterprise Institute celebrated this day of infamy with a two-part event. The tape is here.

I strongly recommend it. You may want to skip the first 13 minutes (some clown wisecracking about the dairy industry’s contribution to ConLaw) but you do not want to miss the main events:

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Commerce and the Court (I)

I’ve griped before (I think) about the Supreme Court’s less-than-stellar record on protecting the commerce of the United States. The Upside-Down Constitution contains an extended riff on the theme. As always, I am entirely right. A pair of Supreme Court case—a lamentable cert denial last week, and a blockbuster argument this week—confirms the analysis and illustrates the justices’ passive-aggressive posture.

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Richard Epstein on “Constitutionalism, Originalism, and Libertarianism”

Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution.  Commentary was provided by Larry Alexander, David McGowan and myself.  You can watch the talk here.  (You have to scroll down a little.)

Richard’s brand of originalism works as follows.  He believes that the constitutional language should be given its original meaning, but that the language is often incomplete or vague.  Therefore, he argues that the language must be interpreted in accordance with some background principles, and those are classical liberal principles, because the leading political theory at the time of the Constitution was classical liberalism.  As a result, Richard is able to argue that the Constitution’s originalism meaning leads largely to classical liberalism.

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