Bench Memos

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Epstein Assails Rove, to No Avail


Richard Epstein of the University of Chicago, writing at Forbes, criticizes Karl Rove’s criticism of judicial activism in the latter’s Wall Street Journal column.  But it is Epstein’s argument that is woefully underdeveloped, even taking its brevity (just over 700 words) into account.  Here’s the heart of it:

[Rove's] narrow conception of the judicial role may be congenial to conservatives who think democratic outcomes almost always have greater legitimacy than judicial ones. As a libertarian, however, I do not share that judgment. The Founders well understood the risk of faction, which could allow simple majorities to restrict the liberties or confiscate the property of their political opponents.

Accordingly, they crafted our Constitution as a complex compromise. In one breath, they conferred extensive powers on federal government and recognized broad powers in the states. In the next, they imposed strong limitations on federal and state power, such as the Takings Clause, which states “nor shall private property be taken for public use without just compensation.”

These complex institutional arrangements raise insuperable difficulties for any simple program of strict construction that stresses the first point to the exclusion of the second. . . .

From a recognition that the Founders “understood the risk of faction,” one simply cannot get to a conclusion that they desired a broad-ranging judicial power as a check on the depredations of winners against losers in the process of majority rule.  But without so much as a minor premise, that’s pretty much where Epstein goes.  For while he pays lip service to the framers’ “complex institutional arrangements,” he only mentions two institutional facts about the Constitution: its conferral of powers on the federal government and the states, and its imposition of “strong limitations” on those powers.  And the only “strong limitation” he sees fit to identify is actually not a very strong one at all: on any originalist reading, the takings clause has a “strong” impact on only a very narrow range of cases.  If this is complexity, I’d hate to see Epstein’s simplicity.

The framers had a lot more in their kit bag of “complex institutional arrangements” than Epstein recognizes here.  They had a multiplicity of factions and religious sects in a great continental republic with a varied economy.  They had the whole gamut of separation of powers, bicameralism, and checks and balances, including but not limited to what we call “judicial review.”  They had a complex new form of federalism, with states not only governing themselves but being represented in Congress and in presidential elections.

What they did not have was an Epsteinian understanding of judicial power.  But that is a furrow I have plowed before.  Richard Epstein identifies himself as a libertarian, which is honest of him.  But he cannot say that the Framers were libertarians in anything like the same sense in which he identifies himself as one.


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