Freedom in Context
The Classical Liberal Constitution: The Uncertain Quest for Limited Government
By Richard A. Epstein
Harvard University Press, 704 pages
Most Americans first heard the name of Richard A. Epstein, then a professor of law at the University of Chicago, in 1991 during Clarence Thomas’s nomination hearings. Joe Biden, then chairman of the Senate Judiciary Committee, brandished Epstein’s Takings and took to denouncing the book like a second-rate Savonarola: Did the nominee subscribe to Epstein’s view that the Constitution enshrines certain natural rights to liberty and property? Did the nominee subscribe to Epstein’s view that excessive regulation denies individuals property rights? “It is a big deal at least to me,” Biden insisted, “and a big deal, in fact, to this country.” And so it should be, for how judges view the relationship between individual liberty and government authority should matter to all Americans. That relationship is one of the central themes of Epstein’s latest book, The Classical Liberal Constitution.
The book is an elegant summation of Epstein’s lifetime of work in legal, political, and constitutional theory. In 35 chapters, he gives a classical liberal account of the Constitution and proposes a rival theory of constitutional interpretation to cure the defects of conservative and progressive approaches. According to Epstein, the “classical liberal constitution” is one that, through limited government, affirms strong property rights, personal liberty, and freedom of voluntary association. Its origins lie not in the Constitution of 1787 or even in the unwritten English constitution, but in the philosophical frameworks of the Hobbesian state of nature and the Lockean political compact.
In the state of nature, all individuals are free, equal, and independent; this also makes them vulnerable to force, coercion, and fraud. But at the same time, individuals enjoy a natural propensity for the society of others, which manifests in behaviors that modern biologists and psychologists have documented as norms of reciprocity and fairness, duty and disgust. Individuals enter into arrangements to respect and affirm one another’s natural rights. Unfortunately, private agreements provide meager protection against the overwhelming power of wrongdoers. That’s where the Lockean political compact comes in. It becomes necessary to institute government to maximize the benefits of voluntary social arrangements while minimizing the negative influence of antisocial actors. Government was thus instituted to uphold the natural rights of life, liberty, and property.
This conception of government resides at the heart of the constitution given to us in Philadelphia by the Framers, and, as Epstein argues, it is in this light that the Constitution ought to be interpreted. The need for interpretation is both inevitable and indispensable, not only because the meaning of the text is sometimes ambiguous but also because the Constitution is imperfect. It is imperfect both in the sense that some of its political arrangements are flawed and that it is not a complete guide to ordered liberty.
Epstein’s interpretive approach, a sort of “guarded originalism,” takes as its starting point the plain meaning of the text at the time of the framing. It then enriches that plain meaning with the philosophical assumptions and interpretive traditions prevalent among the Framers. This differs from what is often called “original understanding,” the effort to interpret the text of the Constitution in accordance with the Framers’ own understanding of its meaning. For Epstein, words are insufficient sources of constitutional meaning absent the philosophical context in which they were first set. And this differs from the progressive approach to constitutional interpretation because it insists on loyalty to the philosophical tradition of the Framers and the exclusion of contemporary political fads.
In a sense, Epstein’s approach to constitutional interpretation shares more in common with certain schools of intellectual history than with the schools of legal thought he challenges. It is not enough to seek out 18th-century dictionary entries, and it is dishonest to impute modern political agendas to the text. Instead, much of our Constitution’s meaning is unwritten, implied, and ascertainable only by reading its text in light of the Framers’ philosophical commitments. Reading Madison, Hamilton, and Jay on the Constitution is necessary, since they helped write it; but one must also read Locke, Montesquieu, Hume, and Blackstone to understand what the Constitution really means.
So what does this approach look like in application? For Epstein, the institution of judicial review is one example of a judicial gloss that has helped to improve our imperfect Constitution through recourse to classical liberal principles not expressly enumerated in the text. There is no “Judicial Review Clause” in the Constitution. In fact, the Constitution creates an astonishingly weak federal judiciary over which the legislative branch wields enormous power. But in Marbury v. Madison, Chief Justice John Marshall carved out a vital role for the judiciary as a check on potential abuses by the legislative and executive branches. Even though the Marbury ruling had no exclusive basis in the text of the Constitution, it was consistent with classical liberal views of the judiciary as an independent institution with the power to limit the excesses of the political branches.
But a single ruling does not a doctrine make. This is where what Epstein calls “constitutional prescription” becomes essential. Just as in private law, where unchallenged usage over a long period of time may give rise to legal rights, so too in constitutional law may long unchallenged judicial usage (i.e., judicial precedent) give rise to new doctrines. Thus the institution of judicial review, though originally a way of ensuring judicial parity with the political branches, eventually came to be construed as a justification for judicial supremacy over the political branches—a far cry from the classical liberal notion of the judiciary as a coequal branch of government, but one favored by the progressive judicial ascendancy.
The next task of the classical liberal constitutionalist therefore is to abandon erroneous doctrines and embrace correct ones. The judge-created Dormant Commerce Clause, for example, bars states from passing laws that unduly burden interstate commerce and thereby helps remove regulatory obstacles to a national market. Even though the rule is to be found nowhere in the Constitution, it furthers the classical liberal principles of economic liberty and private property and, according to Epstein, should therefore be embraced. Similarly, the judge-created separate-but-equal doctrine violates the classical liberal principles of personal liberty and freedom of contract, and was rightly abandoned.
But it is with respect to the intractable issue of race that Epstein qualifies his classical liberal constitutionalism, writing: “Racial success going forward depends on finding the right social balance between classical liberal theory and a social history that at every turn flouted its fundamental principles.” Drawing once again upon a private-law analogy, Epstein surprisingly proposes judicial deference to state-run affirmative-action programs akin to the business-judgment rule that guides courts’ approach to corporate decision-making: So long as policies adopted are reasonable and in good faith, they are to be treated as constitutional. This is a confounding and illogical qualification, but it underscores a tension in Epstein’s constitutional theory. Classical liberal constitutionalism demands that the judge interpret the Constitution in light of the philosophical priorities of the founding generation, while progressive constitutionalism demands that the judge interpret it in light of the shifting preferences of subsequent generations. Under each interpretive approach, the judge must “find” the political ideals that guide and animate the interpretive enterprise. To be sure, classical liberal ideals are less susceptible to faddish mischief than the progressive vogue; but if a jurist as erudite and disciplined as Epstein can founder on an issue such as affirmative action, what does that say for the Joe Bidens of the world? Nevertheless, this should be taken as a relatively small quibble with a magisterial work that will undoubtedly enrich the theory and practice of constitutional law for decades to come.