An imperial but classically liberal court?

Frohnen, Bruce P.

The Classical Liberal Constitution: The Uncertain Quest for Limited Government

by Richard A. Epstein (Cambridge, MA: Harvard University Press, 2014)

Richard A. Epstein, a senior scholar rich in reputation and accolades, has written a comprehensive critique of Supreme Court jurisprudence from the Founding era to today. His motivation for this book: to address judicial errors underlying America's declining economic condition. Epstein's focus on economic structures and practices is understandable given our recent descent into full-scale social democracy; it also clearly arises from his own predilections. Best known for his groundbreaking work criticizing judicial decisions expanding the ability of our government to "take" people's property for supposedly public use, he long has practiced an economic study of the law. And there are areas of law in which his approach bears much good fruit, including in this book. But the book also shows the weaknesses of a narrowly economic jurisprudence in regard to critical social structures and, more generally, the intrusive judicial decision making required by a demand for economic efficiency and justice defined as "no cross-subsidization."

Epstein's central thesis--that our Constitution was established with the purpose of furthering the ideals of classical liberalism--dominates the book's treatment of every major aspect of constitutional law, from commerce to individual rights to religious free exercise. It sustains a powerful critique of contemporary "Progressive" (nationalist and state-centric) jurisprudence and economic policy making. Unfortunately, it undergirds an equally ideological reading of the Constitution and a determination to use courts to transform the United States into a "classical liberal" society it never was, and which the framers of our Constitution never intended it to become.

In a number of places, Epstein sums up what he terms classical liberal philosophy as demanding limited government, checks and balances, and individual rights--especially property rights. This list of political goods may capture with reasonable accuracy a doctrine meaningfully termed "classical liberalism." But it is crucial for Epstein to establish the accuracy of his own conception and, especially, its central place in the thought of the framers as well as in the American Constitution itself. Unfortunately, Epstein fails to make this case, settling for assertions like this one: "Any close reading of the historical materials shows that the Constitution is grounded in the work of such great Enlightenment thinkers as Hobbes, Locke, Hume, Madison, and Montesquieu." Hobbes, of course, was a thinker whose work was repeatedly rejected by Americans of the era. Epstein's list also elides substantive philosophical differences between, for example, Hume the skeptical Tory and Locke the Old Whig. Perhaps most important, this list highly overemphasizes "enlightenment" thinkers at the expense of other more cited sources, including most prominently the Bible. Assertion substitutes for argument here, and it is a telling omission given the wealth of textual material available, most of it substantiating alternative visions relating to priorities such as faith, tradition, common law, and virtue. For good or ill, John Calvin had more to do with the development of American culture and politics than did John Locke.

Then again, it is not historical accuracy for which Epstein strives. Classical liberalism, for him, is not a concrete fact of historical development that, once established, can help us understand ambiguities that may be found in the text of the Constitution. Rather, it is an ideology. Epstein's "ambition," as he puts it in his preface, is "to give a comprehensive account of how the various provisions of the United States Constitution, dealing as they do with both structural issues and individual rights, can best be explained in light of classical liberal theory." He recognizes that "there is always slippage between the world of ideas and the world of practical politics, so that it would be a mistake to posit any perfect correspondence between what the original Constitution prescribes and what a classical liberal theory demands." But for Epstein the theory does, in fact, "demand," and he does his best to show how his intellectual ideal may be imposed upon the not-so-perfectly liberal Constitution, and on American life, to make America over in his preferred image.

To be sure, Epstein states that constitutional interpretation must begin with the text, looking to theory only as a means to clear up ambiguities. In this vein he provides a powerful critique of those advocating a "living" constitution, going so far as to show a number of cases of rank dishonesty in the interpretation of texts and precedents. The case is particularly strong, as he notes, in the case of the Eighth Amendment's prohibition of cruel and unusual punishment. Where a significant number of judges and lawyers have attempted to argue that capital punishment should be seen as prohibited by this provision, no honest reading of the text, history, and structure of the Constitution will bear such an "interpretation." It rests on pure policy preference and an attempt to exert raw will over a text that specifically mentions capital crimes.

But we should not confuse Epstein's respect for the text, when it is clear, for judicial restraint, a doctrine he blames in significant part for the depredations of Progressivism. His argument here begins with the notion of judicial parity, with the Supreme Court seen as part of a set of coequal branches within the national government. Epstein sees this view as a modest one, eschewing what he deems the worst kinds of judicial activism. Yet it is incompatible with the document itself and at the root of his own form of destructive activism.

When the authors of The Federalist Papers referred to the Supreme Court as "the least dangerous branch," they were being neither ironic nor metaphorical. They meant, quite literally, that the Supreme Court, under the Constitution, would have the least amount of power and authority of any branch, and hence the least ability to do harm--or good. The Supreme Court would be supported by only such inferior courts as Congress might see fit to create. Congress also might decide to take away the Court's jurisdiction to rule on particular issues. And, of course, the Court would possess neither purse nor sword, instead depending on the other branches of government to put its holdings into action. Certainly the Court was intended to hold a significant power, namely, as stated in Federalist 78, "to declare all acts contrary to the manifest tenor of the Constitution void." But this understanding of the Court's duty to give the benefit of the doubt to laws is at the heart of what Epstein rejects in both historical and contemporary jurisprudence. He rejects the Supreme Court's currently favored "rational basis analysis" for determining the constitutionality of most economic regulations as too pro-government. But his favored replacement, "strict scrutiny," is no less rooted in judges' policy preferences, merely balancing legislative costs and benefits in a manner more weighted against the government. And "strict scrutiny," being itself a creature of judicial policy preferences, remains likely to undermine our constitutional structure.

Epstein rightly points out that the Court has allowed the national government to grow far more extensive, intrusive, and "independent" of the electoral process than any rational reading of the Constitution might allow. But then this largely is due to the Court's failure to enforce the structural provisions of the separation of powers, a duty he more or less dismisses in criticizing the Supreme Court decision in Schechter Poultry Corp. v. U.S. In that decision the Court held that Congress may not simply pass on (or "delegate") to the president its power to legislate. The Franklin Roosevelt administration had taken a broad mandate from Congress to allow it to establish detailed codes of "fair competition," involving pay rates, hours of work, and various other industrial and labor standards. Epstein castigates the opinion as "clueless" because Congress was in agreement with FDR's grab for legislative power.

Not only does Epstein's mocking criticism miss the point of the opinion; it misses the point of the central facet of the Constitution itself, the separation of powers. Cooperation between branches may negate the ability of checks and balances to function, but such collusion does not negate the need to maintain limits on the powers of each branch, including the insistence that each branch carries out (only) its own duties. Our current unlimited government might still exist without the massive delegation of powers so much a part of the Washington establishment, but at least legislative power and hence the making of administrative "rules" would be in the hands of congressional committees. Members of Congress would have to take direct responsibility for bureaucratic failures, which would be more open to public scrutiny and debate.

Epstein chooses to focus on the expansion of national power under misinterpretations of the Commerce Clause. While real, such misinterpretations only exacerbate a structural problem he ignores: Congress's abdication of its duty to legislate in exchange for the ability to claim credit for "solving" national problems by dumping them into the hands of the executive branch, while maintaining an easier and more profitable role as investigator and ombudsman. Schechter is a dead letter, of course. But then so, arguably, is the Constitution itself. And Epstein's highly ideological thinking will do nothing to bring it back to life.

Nonetheless, Epstein sees himself as setting out a practical program of action to overturn bad decisions only where practical and helpful to classical liberalism. To that end (in a move he himself deems "cowardly"), Epstein eschews any attempt to correct recent Supreme Court decisions regarding homosexual rights--decisions he openly states lack any constitutional warrant. Cowardly or not, such a decision comes at little cost to Epstein's ideological vision, which is blind to the constitutive role of traditional, natural families and of religion in American law and public life.

Epstein seeks to "reconceptualize" governmental power regarding morals in order to make it more classically liberal than the text and tradition would warrant. Thus, for example, he would strike down laws forbidding polygamy because, in his economistic view, they constitute an "anti-competitive restriction that protects some religions at the expense of others." Likewise, Epstein dismisses the Defense of Marriage Act as rooted in "disgust." Here we see Epstein's ideology fully at work. His "general approach to personal freedom writ large" only allows for government to forbid acts causing harm to "the parties involved." That the state of the family, and sexual mores in general, might involve certain externalities--for example, impact upon children and the structure of society--seems not to have occurred to Epstein. Cross subsidization--laws favoring one social relation above any other (let alone one faith above other faiths, or nonfaiths)--is the sole "social" ill he seems willing to recognize.

The central problem is that Epstein, like most lawyers today, rejects judges' proper role in a republican government: to interpret and apply, but not to make, law. At the heart of this rejection is a fundamental misunderstanding of what interpretation entails. Like Ronald Dworkin and many others whose particular policy preferences he rejects, Epstein has a conception of interpretation that is wildly at odds with historical practice, though infinitely more pleasing to the lawyerly ego. One telling example: in describing "the task of a theory of federalism," he notes the fundamental importance of "developing an ideal vision of a federal system against which to compare the original constitutional design and its subsequent transformation."

The very definition of ideological conduct is the creation of a second, false reality through abstract reasoning, then attempting to impose it upon reality. The "task" of judging, and even of criticizing judging, most assuredly cannot be to reshape the Constitution, and through it society, to fit an idealized theory--even were it one that had been shown to be critical to the framers of the document. Rather, it is to find (not conceptualize, but find) in law and tradition the internal logic as well as the evident goals of that document and interpret any ambiguous passages from the text in light thereof. The result may not be as neat as Epstein would like. It certainly will not have the modern libertarian leanings of his analysis of individual rights. But it will be far more respectful of the Constitution, of those who drafted it, and of the people who agreed to be governed by it--and not by the theories of "living constitutionalists" or Richard Epstein.

Bruce P. Frohnen is Charles Evans Hughes Professor of Jurisprudence at Colgate University and professor of law at Ohio Northern University.