Bench Memos

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Help Me, Obi-Wan Kenobi, You’re My Only Hope


That’s the scene from Star Wars that kept running through my head this morning as I read Richard A. Epstein’s article in the Wall Street Journal.  Epstein, of the University of Chicago law school, tries mightily to find a way for the courts to invalidate the threatened “bonus tax” on the earnings of people employed by financial institutions receiving bailout money.  He rightly notes that neither the bill of attainder clause nor the ex post facto clause will do the work he wants.  And Epstein’s “last, best hope” that the courts will use “substantive due process [or] the takings clause” is, he recognizes, not much of a hope.  He regards this as regrettable, but it really is a good thing, since “substantive due process” is a constitutional fraud through and through, and the idea that taxes are “takings” for which the government owes compensation is a self-evident absurdity.  Yet he finishes the article by saying “if Congress doesn’t stop its descent into the abyss, the Court should confess its past sin of constitutional passivity and stop it for them [sic].”

What sin is he talking about?  (And is Andrew Cohen going to accuse him of religious fervor?)  The deeper substratum of Epstein’s approach comes in this paragraph:

Two basic principles that animated our Constitution appear to have no traction today.  One holds that property is the guardian of every other right.  The second asserts that voluntary exchange is the source of general peace and prosperity.  Today’s Supreme Court looks to neither principle for guidance.

Whew.  I sure hope not.  I too prize property and voluntary exchange, but while these are highly important principles, they are moral or political ones that undergird our constitutional order.  They are not, however, legal principles in any meaningful sense of the term, and the invitation to courts of law to “enforce” them is an open invitation to judicial lawlessness.  Every tax, every regulation, has an adverse impact in some sense on property, or interferes with “voluntary exchange.”  To license courts to choose the just and unjust policies in the whole universe of taxes and regulations is an appallingly anti-constitutional idea.

I needed a different scene from that movie, I think–something about avoiding the Dark Side of the Force.


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