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The Force of Law

by Robert F. Nagel

The Classical Liberal Constitution: The Uncertain Quest for Limited Government, by Richard A. Epstein (Harvard, 704 pp., $49.95)

American conservatives are split into two main camps on the issue of judicial enforcement of the Constitution. One, exemplified by the work of the late Robert Bork, believes our system to be essentially majoritarian and, therefore, is distrustful of courts. This group tends to believe that judges should invalidate statutes only when constitutional text and history warrant it. As a consequence, members of this group — call them legalists — disapprove of the modern Supreme Court’s energetic protection of implied rights, such as the rights to abortion and same-sex marriage, and urge instead stronger protections for textually based principles, such as the right to private property and the limitations on the power of the national government.

The second camp, typified by Judge J. Harvie Wilkinson’s recent book Cosmic Constitutional Theory, is distrustful of abstract, doctrinaire thinking and, therefore, believes that judges should respect and even defer to constitutional meaning that is derived from political institutions and practices. Members of this group — Burkean traditionalists — often oppose the expansive use of judicial power in general, whether it is aimed at enforcing the idea of enumerated national powers or at protecting individual rights.

The eminent law professor Richard A. Epstein, currently based at New York University Law School and the Hoover Institution, offers a third way. In this comprehensive, nuanced, and sophisticated volume, Epstein proposes that courts enforce a constitution that gets its meaning from the principles of classical liberalism. Although he asserts that classical liberalism was the political philosophy of all the Framers, today his is a lonely voice that, if heeded, would significantly reshape constitutional jurisprudence and radically alter American politics.

By “classical liberalism,” Epstein means essentially the philosophy of John Locke, which holds that all individuals are naturally free and submit to government only to prevent harmful conduct and to achieve common benefits that would be impossible without coordination. More specifically, Epstein relies heavily on James Madison’s famous argument in Federalist 10 about the dangers of political factions, which are narrow interest groups that can subvert the general welfare by commandeering the government to benefit themselves. He supplements this basic picture by utilizing modern economic and legal analysis. Thus, the elegant phrases of Madison are somewhat disconcertingly mixed together with such terms as “the Kaldor-Hicks standard” and the “intermediate level of scrutiny.”

Epstein works out the implications of classical liberalism by reviewing most of the major constitutional decisions of the Supreme Court. In this account, Epstein demonstrates that classical liberalism is consistent with aspects of the thinking of both the legalist and the Burkean-traditionalist camps. But he also separates himself, and classical liberalism, from both camps.

Like the legalists, Epstein emphasizes the importance of textual and historical meaning. He also favors strong judicial review to protect the principle of enumerated powers and explicit rights, including property, speech, and the free exercise of religion. However, unlike some legalists, he recognizes that constitutional provisions in some areas, such as foreign affairs, may be too scant to justify judicial enforcement. Moreover, he argues that judges are sometimes right to depart from constitutional language. Thus, because of classical liberalism’s commitment to economic freedom and despite the fact that the text of the Constitution allocates to Congress the power to regulate commerce, he argues that the Court has been right to strike down protectionist state laws even in the absence of federal legislation. He also thinks that the Supreme Court should sometimes adhere to decisions that cannot be justified by text or history. He even supports maintaining the present state of the law on abortion, including Roe v. Wade, on the ground that it would be risky to alter what has become a set of entrenched expectations. He supports the use of racial preferences in public education, for similar reasons.

Despite his distrust of the role of factions in the political process, Epstein, like conservative traditionalists, thinks that deference to the political process is sometimes justified. He argues, for example, that when the government is managing institutions, such as public schools, rather than regulating conduct, judges should exercise oversight with restraint. Hence, he favors respecting the “sentiments of the majority” in cases involving voluntary school prayer. Similarly, prayers that open legislative sessions are, Epstein argues, part of the “conventional social background” that courts should permit. More broadly, the power of state governments to promote health, welfare, and morals (known as the “police power”) is, according to Epstein, an important, if implicit, part of the constitutional scheme. This power is less dangerous at the state level than it would be at the national level, because the different states provide a variety of regulatory options and dissatisfied citizens can choose to relocate. He argues that the police power is sufficiently wide that the Court should defer to states’ judgments about the wisdom and morality of same-sex marriage.

Conservatives, then, will be drawn to but also challenged by Epstein’s version of classical liberalism. Progressives, however, will be uniformly appalled, since most of their program of economic regulation and redistribution is incompatible with a constitution shaped by that philosophy. Epstein would have the courts vigorously enforce limits to the commerce power; indeed, he would bring back the commonsensical but long-abandoned distinctions between the regulation of commerce and the regulation of manufacturing, mining, and other activities that are related to commerce but occur before or after interstate sales. He would have the judiciary second-guess legislative judgments about whether the public welfare will be served by a federal tax or expenditure or by a public condemnation. Judicial power would be used to implement the Lockean model of a free people with limited government.

If fully implemented, this would mean the dismantling of the independent agencies that form much of the machinery of the administrative state, because they violate the principle of separation of powers. It would mean the invalidation of the National Labor Relations Act, the Agricultural Adjustment Act, and the Fair Labor Standards Act. All represent a government preference for monopoly over competition. Redistribution programs like Obamacare, Social Security, Medicare, Medicaid, and food stamps would be confined to the authority of state governments, because they all appropriate private property in ways that jeopardize, rather than promote, the general welfare. Even at the state level, government power would be significantly diminished: Courts would strike down aggressive land-planning schemes and laws against polygamy. Judges would enforce this classical-liberal constitution by using the same intellectual tools they now use to protect privacy rights. That is, they would make essentially legislative judgments about the validity of public purposes and the efficacy of the means chosen to achieve those purposes.

In short, the classical-liberal constitution would effectively disenfranchise most of the modern progressive movement. As attractive as this idea may seem at first, like many pleasant dreams, it appears less desirable in the light of day. Here are two reasons.

First, whatever the force of classical liberalism, its practical implications would have to be imposed by judges using the analytic methods available to them. These methods are often not powerful enough to legitimate authoritative settlement of contested issues. To take one example, the Court frequently attempts to justify its invalidation of a statute by asserting that the legislature’s purpose was too vague or uncertain to count as the kind of “compelling” purpose required under the Constitution. Epstein endorses this methodology. But it is simply not correct to say that vague or uncertain purposes cannot amount to significant or worthwhile public objectives.

Epstein himself contends that speculative purposes are sometimes important enough to trump even constitutional requirements. Thus, he recounts his success in arguing that the Court should avoid deciding whether the words “In God we trust” violate the Establishment Clause because invalidating that inscription might prove unduly disruptive. More generally, recall that Epstein urges the Court to take into account highly uncertain and general considerations when deciding whether an otherwise unconstitutional practice, such as protecting a legally baseless right to abortion, should be permitted to continue because the body politic has grown accustomed to it and, so, change would be risky. Courts cannot persuasively justify the invalidation of important public policies by forbidding political institutions to rely on a kind of justification that judges themselves use.

Second, the basis that judges would have for dismantling and blocking so much of the progressive agenda would be the force of our fundamental law. But over and over again Epstein’s analysis relies ultimately not on legal authority but on a political philosophy that he says animated the Framers. Epstein does not provide much historical evidence for his assertion that all of the Founders subscribed to classical-liberal principles. But even if we assume that this claim is accurate, it does not follow that the Founders intended to impose or did impose that philosophy as the fundamental law — at least, not any further than is indicated by the constitutional text that was proposed and ratified.

If the progressive agenda is inconsistent with a profoundly attractive political philosophy and sound economic analysis, the primary place to make that argument is in the world of ideas and politics.

– Mr. Nagel is the Rothgerber Professor of Constitutional Law at the University of Colorado Law School.

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