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The Classical Liberal Constitution

The Classical Liberal Constitution

Copyright Date: 2014
Published by: Harvard University Press
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  • Book Info
    The Classical Liberal Constitution
    Book Description:

    American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard Epstein laments this complacency which, he believes, explains America's current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers' original constitutional design. Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, classical liberalism emphasized federalism, restricted government, separation of powers, and strong protection of individual rights. New Deal progressives challenged this synthesis by embracing government as a force for social good rather than a necessary evil. The Supreme Court has unwisely ratified the progressive program by sustaining many legislative initiatives at odds with the classical liberal Constitution. Epstein addresses both the Constitution's structural safeguards against state power and its protection of individual rights. He sheds light on contemporary disputes ranging from presidential prerogatives to health care legislation, while exploring such enduring topics as judicial review, economic regulation, freedom of speech and religion, and equal protection.

    eISBN: 978-0-674-72649-9
    Subjects: Law, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface: My Constitutional Odyssey
    (pp. ix-xvi)
  4. Part One: Preliminaries

    • Introduction: Our Two Constitutions
      (pp. 3-16)

      The United States Constitution must, on any neutral evaluation, count as the greatest triumph of political statecraft in the history of the world. That achievement is all the more remarkable because it came in the face of immense practical and theoretical difficulties. The Constitutional Convention in Philadelphia was called together to remedy the manifest ills of the Articles of Confederation that had governed the United States since 1781. But the Founders quickly went beyond their original mandate, with obvious misgivings, after concluding that the basic structure of the Articles, with its ineffectual national government, was beyond repair. Their self-imposed task...

    • 1 The Classical Liberal Synthesis
      (pp. 17-33)

      The classical liberal tradition of the founding generation prized the protection of liberty and private property under a system of limited government. That tradition also rejected the optimistic view that self-interested individuals could through an ingenious array of private voluntary agreements preserve public order against civil strife. The determined aggressor had to be suppressed by fines, imprisonment, exile, or even death, if he could not be persuaded to cooperate by lesser means. Governments, moreover, needed at the very least the powers of taxation and eminent domain to obtain both financial resources and particular assets in order to maintain both liberty...

    • 2 The Progressive Response
      (pp. 34-44)

      The classical liberal conception of the Constitution had a long historical run of about 150 years, but in the end it was vanquished by the progressive counterrevolution that culminated in critical Supreme Court decisions, on issues of both federalism and individual rights, during the tumultuous 1930s. It should not be supposed, however, that the progressive mindset in constitutional law has vanished from the current intellectual scene simply because many New Deal Depression-era short-term public works and relief programs no longer form a part of the modern American political fabric. The progressive constitutional mindset continues to thrive today with increased urgency....

    • 3 Constitutional Interpretation: The Original and the Prescriptive Constitutions
      (pp. 45-72)

      Any account of the specifics of constitutional law begins with a disarmingly simple question. What rules and techniques of interpretation are necessary and proper to grasp the meaning of any constitutional text? In fact, this inquiry has two parts. Each demands a different approach. The first portion of the inquiry writes on a blank slate, and asks about the proper understanding of the text when presented in its original written form, unadorned by any previous interpretive efforts. Only matters of principle should be invoked to decide this question, which itself is a vast inquiry that requires, as will become evident,...

  5. Part Two: Constitutional Structures

    • Section I: The Judicial Power

      • 4 The Origins of Judicial Review
        (pp. 77-85)

        In one sense, any study of our structural Constitution should be as easy as counting from one to three. Start with the legislative power, which is set out in Article I, then move on to the executive power set out in Article II, and follow this with an examination of the judicial power that is found in Article III. The logic behind this simple progression is that laws must be made before they can be enforced, and enforced before they can be applied or challenged in court. Yet almost invariably the study of American constitutional law does not proceed in...

      • 5 Marbury and Martin
        (pp. 86-100)

        The pre-1787 historical materials supply vital clues to the original constitutional arrangements on judicial review, but they give little insight to the path of its eventual evolution. Quite simply, the American Constitution entrenches the judicial power against both the legislature and the executive. But that entrenchment only makes sure that neither the Congress nor the president can contract the Courtʹs jurisdiction. Neither separation of powers nor checks and balances necessarily allows the Court to rule over either the two political branches of the federal government or over the states. They merely protect the judiciaryʹs distinctive institutional competence from political incursions....

      • 6 Standing: Background and Origins
        (pp. 101-118)

        The aggressive reach of judicial review first articulated inMarbury v. Madisonfrequently puts courts at loggerheads with the political branches of government. In some cases, their relationships follow the predictable course, as each branch seeks to expand its own power at the expense of its rivals. But the diverse range of constitutional conflicts, ancient and modern, make it perilous, even in retrospect, to offer any generalizations about these power struggles. Indeed, courts often seek to rid themselves of matters dumped into their lap.Marburyitself sounded that cautionary trope. It is therefore appropriate to start withMarburybefore turning...

      • 7 Modern Standing Law
        (pp. 119-132)

        The original contours of the standing doctrine were articulated in an environment in which the Supreme Court thought that its main function was to insulate the large administrative state from constitutional challenge, while subjecting decisions made within that framework to judicial review. After the passage of the Administrative Procedure Act of 1946 (APA), however, the constitutional landscape changed radically, for the key constitutional challenges were no longer based on classical liberal claims for economic liberty (typically dead losers on the merits in any case after the New Deal and the corresponding shift in the Courtʹs approach to these claims beginning...

      • 8 The Political Question Doctrine
        (pp. 133-144)

        Standing poses the initial procedural barrier to all litigants who seek to have their cases heard on the merits. Once it is overcome, the second constitutional obstacle to an adjudication on the merits is the political question doctrine. That doctrine asks whether a court should deem the case ʺnonjusticiableʺ (incapable of judicial resolution) on the ground that its resolution properly falls within the province of the Congress or the president.

        The political question doctrine made an early debut in American constitutional law even under the restrictive version of the federal judicial role articulated inMarbury v. Madison, which only allows...

    • Section II: The Legislative Power

      • [Section II: Introdution]
        (pp. 145-146)

        This next section of the book explores the scope of the legislative power set out in Article I of the Constitution. The central contrast between the classical liberal and progressive visions dominates this area as well. In all relevant cases, the classical liberal view was intent on preserving the key elements of limited government. At the same time, the progressive alternative was dismissive of each of these limitations on federal power, to which it responded in two fashions. First, it tended to soften any of the constitutional limitations on the organization of power at the federal level. Second, it adopted...

      • 9 The Commerce Power: Theory and Practice, 1787–1865
        (pp. 147-157)

        The history of the legislative power under the Constitution is intimately tied to the Commerce Clause, which states simply: ʺThe Congress shall have power … to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.ʺ¹ As will become evident, there is an enormous tension between the classical liberal and progressive views on how this clause should be interpreted. The determined progressive efforts to expand the reach of federal power were funneled through the Commerce Clause for one simple reason. It was strictly required to allow progressive principles to deal with the massive dislocations of...

      • 10 The Commerce Clause in Transition: 1865–1937
        (pp. 158-167)

        The expansion of the commerce power after the Civil War came about through a set of incremental adjustments, some of which respected the approach ofGibbonsand others which did not. To see how the law progressed, it is useful to divide the cases into two periods. The first deals with the extent to which the definition of commerce can be expanded to deal with agriculture, manufacture, or mining, where the original line inGibbonslargely held firm. The second deals with the complex question of whether the direct regulation or, in some cases, prohibition of people and goods in...

      • 11 The Commerce Clause: Transformation to Consolidation, 1937–1995
        (pp. 168-182)

        The progressive political ideals that had commanded so much attention in the first third of the twentieth century were finally put into action during the first two terms of Franklin Rooseveltʹs New Deal presidency, and have been elaborated and expanded ever since. This chapter takes up the consolidation of the progressive worldview from the tumultuous New Deal period up until 1995, when the counteraction set in. Chapter 12 picks up the narrative withUnited States v. Lopez, which it then carries through to the contentious debates over the individual mandate under the Patient Protection and Affordable Care Act. The purpose...

      • 12 Constitutional Pushback: 1995 to Present, from Lopez to NFIB
        (pp. 183-193)

        The last stage of constitutional development started in 1995 withUnited States v. Lopez,¹ where Chief Justice Rehnquist, writing for a narrow five-to-four majority, struck down the Gun-Free School Zones Act, which forbade carrying a gun within 1,000 feet of a school.² In one sense, the opinion reads as a sea change insofar as it indicated that there was at least some outer limit on the scope of federal power, if only because a federal statute was actually struck down for exceeding the bounds of the Commerce Clause. But at root, the opinions inLopezdo nothing to unpack the...

      • 13 Enumerated Powers: Taxing and Spending
        (pp. 194-209)

        The comprehensive discussion of the Commerce Clause addresses the question of when and how Congress may regulate. But that clause cannot be read in isolation from other key powers afforded to the federal government, which may be exercised in tandem with it. The most important of these for general purposes is the spending power, whose history has followed a path parallel to that of the commerce power. At the beginning, the restrictions found in the clause were respected at the legislative and presidential levels, so that the functions exercised by the federal government, consistent with the theory of limited government,...

      • 14 The Necessary and Proper Clause
        (pp. 210-226)

        No discussion of the legislative power is complete without some examination of the Necessary and Proper Clause, the final clause in Article I, Section 8, which gives Congress the following power:

        To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.¹

        Stated in this form, the clause not only gives an added boost to the specific powers conferred upon Congress, but it also allows Congress to augment the powers of any...

      • 15 The Dormant Commerce Clause
        (pp. 227-244)

        Our examination of the commerce power has thus far been limited to cases where Congress has explicitly exercised its regulatory power over certain activities. The question left untouched is whether Congressʹs simple power to regulate interstate commerce in and of itself blocks state legislation over those same areas. That is the question of the dormant Commerce Clause. Before 1937, the scope of this problem was necessarily limited by the then-recognized limitations on the scope of the commerce power. Thus the issue could arise in connection with transportation and communication across state lines, but it could not normally emerge in connection...

    • Section III: The Executive Power

      • 16 Basic Principles and Domestic Powers
        (pp. 247-266)

        The last key piece of our constitutional architecture is the executive branch. As a matter of institutional design, the Founders chose a unitary executive, with a single president perched on top of a complex pyramid of lesser officials in the executive branch (or, as they called it, ʺdepartmentʺ). The central challenge in understanding how the president fits into the overall constitutional structure is found in the tension between two key clauses, which highlight the tension in any system of limited government. Section 1 leads off with a pop: ʺThe executive power shall be vested in a President of the United...

      • 17 Delegation and the Rise of Independent Agencies
        (pp. 267-284)

        The analysis of executive power has thus far been conducted in connection with issues of structure that long predated the New Deal. The implicit assumption in that model is a tripartite division of functions that denies any overlap between legislative and executive powers. The Congress first does its job in creating law and then turns the matter over to the executive for implementation and enforcement. But this compartmentalization can never be made airtight. Accordingly, this chapter starts with a theoretical explanation of the administrative inevitability of delegation and then discusses the patterns of what I call ʺtrusted delegations,ʺ followed by...

      • 18 Foreign and Military Affairs
        (pp. 285-298)

        The previous chapters played out the connections between executive, legislative, and judicial affairs in domestic situations, where it is difficult to make any global assessment over their relative strengths. The balance of power plays out quite differently in the area of foreign affairs, where presidential expedition in the face of crisis becomes the focal point of the constitutional design. The role of the Congress remains important, but it has unmistakably yielded ground to the president relative to the original constitutional structure since the earliest days of the nation. The judicial branch beats a hasty retreat from these issues except in...

  6. Part Three: Individual Rights

    • Section I: Property, Contract, and Liberty

      • 19 From Structural Protections to Individual Rights
        (pp. 303-313)

        The previous portions of this book have explained the classical liberal approach to critical issues of constitutional structure. At first blush, it seems unlikely that any examination of substantive rights should be related to these structural matters. But historically and analytically, constitutional structure and substantive rights have in fact always been intimately connected. Adopt a restrictive account of standing, and it becomes far easier for Congress to create legal monopolies and cartels. Permit permanent independent administrative agencies, and it becomes far easier for Congress and the executive to displace traditional property rights. Or, develop a sensible version of the dormant...

      • 20 Procedural Due Process: Implementing the Classical Liberal Ideal
        (pp. 314-336)

        In dealing with the transition from structural protections to individual rights, it is appropriate to begin with an analysis of the one protection that explicitly limits both the national and state governments: the Due Process Clause. As its name suggests, it offers a set of procedural safeguards against the loss of any substantive entitlement. The Fifth Amendment of the Constitution, part of the Bill of Rights, states ʺnor [shall any person] be deprived of life, liberty, or property, without due process of lawʺ—by the United States. The analogous provision of the Fourteenth Amendment reads ʺnor shall any state deprive...

      • 21 Freedom of Contract
        (pp. 337-346)

        In the domain of negative rights, the initial constitutional forays had to do with property rights and economic liberties. Historically, the magnitude of the shift in political and constitutional orientation between the (largely) classical liberal and the (largely) progressive view is captured in one critical flip-flop. Roughly speaking, economic liberties, and to a lesser extent property rights, received strong protection in the pre-1937 era and far weaker protection thereafter. Personal rights travel the reverse track from weak protection before the New Deal transformation to stronger protection thereafter. In both settings, the interplay between the scope of the basic right and...

      • 22 Takings, Physical and Regulatory
        (pp. 347-366)

        The differences between the classical liberal and progressive positions are also evident whenever government takes or regulates private property, most notably, but not exclusively, in the context of land use. The operative constitutional provision provides, simply enough: ʺnor shall private property be taken for public use, without just compensation.ʺ¹ It should come as no surprise that this provision lies at the heart of the dispute between the classical liberal and progressive views of government. Strong property rights operate as a constraint against government power, for so long as the government must compensate when property is taken, its distinctive government power...

      • 23 Personal Liberties and the Morals Head of the Police Power
        (pp. 367-380)

        The previous two chapters have examined all claims for economic liberties and property rights through a two-step analysis that first examines the scope of the underlying constitutional right, and then turns to the reasons the state advances to justify limiting that right. On economic liberties and property rights, the manifest trend has been to narrow the scope of the basic rights and to expand the scope of public justifications for their limitation in ways inconsistent with both the constitutional text and the classical liberal theory that undergirds it. This same two-step process of analysis also applies to a range of...

    • Section II: Speech

      • 24 Freedom of Speech and Religion: Preliminary Considerations
        (pp. 383-394)

        The division between classical liberal and progressive thought also shapes the constitutional debates over the First Amendment rights relating to both speech and religion. As usual, the interpretive inquiry begins with the choice of the standard of review applicable to the particular cases. The first judicial instinct is to think (wrongly) that speech and religion deserve special protections that property rights and economic liberties do not. That approach seems misconceived from the get-go because the most reliable protections for speech and religion come from the security of a sound basic system of law unrelated to particular issues of either speech...

      • 25 Force, Threats, and Inducements
        (pp. 395-405)

        The initial round of First Amendment litigation arose in the aftermath of World War I, where the central issue on the table related to the interconnections of force, threats of force, and inducement. Frequently, force and persuasion lie at opposite poles in political discourse, as the former short-circuits the public debate that the latter fosters. In a deep sense, the First Amendment offers protection against the dangers of industrial policy in the domain of public discourse. It is not the function of government to pick winners and losers in political debate. Rather, it is to let all speak, no matter...

      • 26 Fraud, Defamation, Emotional Distress, and Invasion of Privacy
        (pp. 406-422)

        One of the central difficulties in First Amendment law results from its collision with the ordinary law of tort, which is, to say the least, of ancient vintage. When courts chiefly focus on physical injuries, they necessarily explore the limitations on freedom of action, starting with the unwavering judicial commitment against the use of force.¹ But just as the tort law limits the freedom of action, so it also limits the freedom of speech, and for the same reason—that the harm some speech can generate outweighs its social value. The parallel between the two positions is well captured by...

      • 27 Government Regulation of the Speech Commons
        (pp. 423-436)

        The previous chapter linked the ordinary conceptions of fraud, defamation, emotional distress, and privacy to First Amendment theories of freedom of speech. Since the earliest of historical times, however, no legal system has ever confined itself to regulation of speech or other activities that take place between private individuals exclusively on private property. In addition, the law has had to undertake the difficult and extensive task of regulating the use and operation of common property under some amalgam of customary and statutory rules.¹ The rise of these public institutions often reverses the fundamental presumptions of the private law. Now exclusivity...

      • 28 Progressive Regulation of Freedom of Speech: Labor, Communications, and Campaign Finance
        (pp. 437-458)

        Most First Amendment law applies in contexts that are broadly consistent with classical liberal principles. Nonetheless, First Amendment law is not somehow insulated from the progressive critique that exerts so much influence on issues dealing with separation of powers, federalism, property rights, and economic liberties. This chapter systematically explores three important areas where traditional First Amendment principles have come into conflict with major progressive reforms. These include the application of antitrust and labor laws to speech activities, the licensing procedures followed by the Federal Communications Commission, and campaign finance regulation.

        In each of the three areas discussed above, the expansion...

    • Section III: Religion

      • 29 Free Exercise
        (pp. 461-480)

        The two religion clauses of the First Amendment read as follows: ʺCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.ʺ¹ As noted in Chapter 24, those two commands cut in opposite directions. The constant danger runs as follows. Any protection of religious liberty above and beyond the protection given to other activities could be read as an establishment of religion, while any restriction on activity of religious institutions could be read as limiting the free exercise of its members. Each clause always lurks in the wings when the other is under consideration. Indeed,...

      • 30 The Establishment Clause: Theoretical Foundations
        (pp. 481-491)

        In this chapter, we leave the question of free exercise to tackle the daunting interpretive problems surrounding the Establishment Clause. Per usual, the written portion of the clause covers only a fraction of the relevant issues, because it says nothing about either the reach of the clause or the possible justifications for limiting its scope. As a brute historical matter, the Establishment Clause was intended to place a ban on the ability of Congress (to whom the First Amendment is exclusively directed) to establish a national church, based on the model of the Anglican Church in England. Such an official...

      • 31 Regulation and Subsidy under the Establishment Clause
        (pp. 492-502)

        In virtually all areas of law, the Constitution has to deal with the twin questions of takings and givings. The first of these topics includes direct government regulation of private activities, and the second covers the use of government grants, subsidies, or licenses that either allow or promote those activities on which the government chooses to shower its largess. The direct regulation of religious activities covers a wide range of possible situations, of which perhaps the most instructive are the Sunday Closing or Sunday Blue Laws.

        The initial foray in the regulatory arena was the 1961 decision of the Supreme...

      • 32 The Commons
        (pp. 503-518)

        The Establishment Clause also presents major issues in connection with the proper utilization of the commons, that is, those places to which all have access but are allowed only limited use. Here, again, the ultimate objective is to prevent skewed uses of these public spaces that do not reflect a userʹs contribution to the creation and maintenance of these spaces. The commons, of course, did not start with religious activities, but in connection with the manifold activities of everyday life. The widespread presence of public beaches, buildings, squares, parks, and athletic fields shows the futility of a hard-line separationist position...

    • Section IV: Equal Protection

      • 33 Race and the Fourteenth Amendment
        (pp. 521-540)

        By no stretch of the imagination does the Constitution of 1787 represent the last word on race, sex, and citizenship. This chapter traces the law of race through modern times, chiefly through the lens of the multiple layers of interpretation of the Fourteenth Amendment. The law as it relates to both citizenship and sex will be discussed in that order in the following two chapters.

        The treatment of race in the 1787 Constitution was, in any point of view, both limited and decidedly negative. The Fugitive Slave Clause did not use the word ʺslave,ʺ but it did require all persons...

      • 34 Citizenship and the Fourteenth Amendment
        (pp. 541-553)

        As the last chapter revealed, the Citizenship Clause of the Fourteenth Amendment was truly transformative on the issue of race. Two other major substantive areas remain: the role of citizenship in American constitutional law and the role of sex discrimination under the Equal Protection Clause. This chapter tackles the question of citizenship, which raises three separate issues. The first issue deals with the simple question of how citizenship is acquired and lost. The second deals with the troubled distinction between citizenship and alienage in the aftermath of the decline of the Privileges or Immunities Clause of the Fourteenth Amendment.


      • 35 Equal Protection and Sex Discrimination
        (pp. 554-566)

        The previous analysis of race and citizenship sets the stage for dealing with the third major classification under the Equal Protection Clause—that states may classify individuals on account of sex or, as is more commonly said today, gender. This choice of terms is not without consequences for the shape of equal protection law. Traditionally, ʺgenderʺ was used to classify nouns in foreign languages. That classification process often looks inherently arbitrary, which in turn suggests, perhaps indirectly, that sex differences relevant to human reproduction do not carry over to other areas of life. The use of the term ʺsexʺ, in...

  7. Part Four: Conclusion

    • Conclusion: The Classical Liberal Alternative
      (pp. 569-584)

      The central mission ofThe Classical Liberal Constitutionis to go against the grain of modern Supreme Court jurisprudence and much of the legal scholarship that has grown up around that body of work. The motivation for this argument should be apparent from the major disarray that infects every area of modern American life: steady decline in the average standard of living; constant battles over debt limits and fiscal cliffs; uncertainty over key elements of the tax structure; massive overregulation of the most productive sources in society (health care and financial services); government-inspired brinksmanship in labor negotiations; and runaway redistribution...

  8. Notes
    (pp. 585-652)
  9. Index of Cases
    (pp. 653-664)
  10. General Index
    (pp. 665-684)