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Constitutional Law,

Aug. 2, 2014

The Classical Liberal Constitution

Erwin Chemerinsky is impressed and disturbed by Richard Epstein's The Classic Liberal Constitution.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).

Richard A. Epstein's new book is the culmination of decades of his writings on constitutional law. Much of it - such as his chapters on the commerce power and the takings clause - will be familiar to those who know his scholarship. But The Classical Liberal Constitution is impressive in its overall scope. In 583 densely packed pages (not including notes), Professor Epstein describes his view of the proper way to interpret much of the Constitution. Few will agree with him on many of his conclusions, but all should admire the coherence and comprehensiveness of this major work.

A law professor at New York University, Epstein advocates for what he calls a "classical liberal" approach to the Constitution. At the outset, he says that this is based on "the twin pillars of private property and limited government." He seeks to develop a theory which he says rejects both traditional conservative and progressive approaches to the Constitution. He says that his "central mission" in the book is "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 book is most impressive for its comprehensiveness. Except for a brief discussion of the cruel and unusual punishment clause of the Eighth Amendment, Epstein does not discuss the provisions of the Bill of Rights concerning criminal procedure. But he addresses most other aspects of constitutional law. Part I of the book presents his theory of classical liberalism and his view of what the framers of the Constitution intended, especially with regard to creating a government of very limited powers.

Particularly interesting is his discussion in chapter 3 of how to deal with the many Supreme Court decisions throughout history that are inconsistent with his views. He says the central question always must be, "[D]oes the original version of the Constitution or its subsequent interpretation do a better job of advancing the ideals of a classical liberal constitution?"

The remainder of the book seeks the answer as to specific areas of constitutional law. Part II of the book looks at structural issues of constitutional law, with sections dealing with judicial review, congressional power (especially Congress's commerce power), and executive power. Part III then examines individual rights, with the first section examining property, contracts, and liberty, and subsequent sections focusing on speech, religion, and equal protection. Part IV offers a brief conclusion.

There is no neutral perch from which to discuss constitutional law, and I embrace the progressive vision of the Constitution, which Epstein spends much of the book attacking. From this perspective, I found much of what he advocates deeply disturbing. First, he would radically limit federal power. Under his view of the federal spending power, discussed in chapter 13, Congress would be limited to taxing and spending to carrying out specific powers enumerated in Article I of the Constitution. In practical terms, this would mean that federal programs ranging from Social Security to Medicare and Medicaid to food stamps and disaster relief would be unconstitutional.

Epstein devotes four chapters to presenting his very narrow view of Congress's commerce power, which would limit Congress to regulating commercial transactions and prevent it from regulating activities based on any substantial effect on interstate commerce. Its application would render unconstitutional federal laws ranging from the minimum wage to occupational health and safety regulations to laws ensuring safe food and drugs. Epstein flatly rejects the notion that the complex economy of the 21st century requires federal regulation and the administrative state that has developed since the New Deal.

Epstein's view of individual liberties affords far more protection for economic rights and much less for individual freedom. He urges, as in his past writings, that courts be much more willing to find government regulation to be a taking - and much less willing to find that takings are for "public use." The result would be a government that is much less able to regulate for the benefit of society.

His views of privacy rights, expressed in chapter 23, are particularly interesting. He is explicit that he believes Roe v. Wade was wrongly decided, and says that if he were a justice he would have voted to uphold state laws prohibiting private consensual, adult homosexual activity. But he says that these precedents are established and he would not vote to overturn them now.

Epstein is generally in agreement with much of the current Supreme Court's First Amendment jurisprudence, including its protection of corporate speech and campaign spending. But even here, he makes clear that he would radically change some aspects of the law. For example, he says that he would return to the "earlier rule that allowed employers ... to tell workers that they could not remain members of a union so long as they worked for the firm."

Finally, in both his introduction and conclusion, Epstein wants to blame the abandonment of the classical liberal constitution for the "major disarray that affects every area of modern American life." He never justifies this conclusion, and perhaps ironically he never mentions the growing wealth disparity as being among these problems.

This book is stunning in its comprehensiveness and thoroughness in discussing cases and the scholarly literature. Yet Epstein is right that few will agree with him. And from my perspective, that is a good thing.

Erwin Chemerinsky is the dean and Raymond Pryke Professor of First Amendment Law at UC Irvine School of Law.


Kari Santos

Daily Journal Staff Writer

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