The Classical Liberal Constitution by Richard A. Epstein (Harvard University Press 2014), 701 pages.
In Book II of his Two Treatises of Government, John Locke says “that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” A towering figure in the Enlightenment, Locke is often called the father of classical liberalism, his Two Treatises standing fast as a key stanchion in the overall philosophical edifice of liberalism.
We contemporary libertarians, the ideological defenders of private property and individual rights, regard this classical-liberal tradition as a central, even predominant, element of influence, the ancestor of the set of beliefs we still advocate. But despite the clear link between present-day libertarianism and classical liberalism, the two are not perfectly coextensive, presenting important and irreconcilable differences. Moreover, liberalism and libertarianism themselves are not rigid, indivisible objects of inquiry; depending on how we define them, either could be the more general or specific conceptual category, enfolding any number of subcategories or offshoots.
In The Classical Liberal Constitution, law professor Richard A. Epstein argues for a return to “the original classical liberal constitutional order” as opposed to “the progressive order” that has dominated political life since the turn of the 20th century. In so arguing, Epstein sets forth an ambitious four-part journey that examines the shape of the U.S. Constitution within contexts provided by political, economic, and legal theory. Even for one trained as a lawyer, Epstein’s study intimidates in the vast ambit of its concerns. Part Two alone dives deep into the jurisprudential theory and practice surrounding all three branches of the U.S. government. The goal of such a sweeping survey of the legal topography is, Epstein says, to vindicate a “third approach to constitutional law,” one that implements the Founders’ “middle road,” “maintain[ing] order without destroying liberty.” A government with too much power poses the risk of tyranny and oppression, while a government that is too weak, Epstein contends, leaves itself vulnerable to “internal upheavals or external attacks.” Thus is the stage set for the presentation of a case with which today’s libertarians will surely find much to cheer.
Given the enormous amount of daylight between where we find ourselves today and any libertarian vision of society, a theory “start[ing] from the twin pillars of private property and limited government” must represent a move in the right direction. The approach articulated so thoroughly in The Classical Liberal Constitution would see the abatement of much of the power that the American state has seized since the Progressive Era. Epstein argues that contrary to both the interpretive methods of “conservative originalism” and progressivism, jurists should actively seek to decipher the Constitution using the “general guiding theory” of classical-liberal thought. Showing how Supreme Court jurisprudence has enabled the federal government’s many usurpations of power, Epstein carefully reveals the ways in which positive (as opposed to negative) rights create conflicts of interest and impair the foundations of economic health.
Pointing to recent research from his University of Chicago Law School colleague William Baude, Epstein calls into question current law on the federal government’s power to take land through eminent domain, arguing that this power “is not on the list of distinct enumerated powers that the Constitution gives to the federal government over the states.” Arguments like this one submit a potent challenge to what has become the orthodoxy in constitutional analysis, and to a political philosophy that regards the state as a “benevolent force,” “exercised by dedicated and impartial administrative experts.” It is in such confrontations with the dominant social-democratic model of progressive thought that Epstein is at his strongest.
For all that, Epstein’s approval of political authority is more than a weak endorsement of a necessary evil and will undoubtedly cause many libertarian readers to recoil. The book makes clear from the outset that its thesis is decidedly not that of “the magic paean of radical individualism with which [classical liberalism] has often been conflated.” Epstein takes special care to distinguish his brand of liberalism from libertarianism throughout The Classical Liberal Constitution.
For example, discussing the Espionage Act of 1917, which, among other things, made it illegal to “obstruct the recruiting or enlistment service of the United States,” Epstein writes, “No one can credibly claim that the statutory ends are illegitimate.” For Epstein, questions that implicate the individual’s right to free speech simply “boil down to … the extent and degree of the government prohibition.” Under Epstein’s ideal classical-liberal constitution, all legal questions are reduced not to fundamental principles about individuals’ inviolable rights, but to computational balances of interests that introduce all of the unintended consequences libertarians are so familiar with. Thus even while critiquing the low bar of the rational-basis test for whether a given legislative enactment is constitutional, Epstein leaves its fundamental problem unscathed. Ultimately, if a legal system starts by accepting arbitrary, coercive power as legitimate, as Epstein’s does, that power will soon aggrandize itself and excuse all kinds of tyranny under deferential tests such as the rational-basis standard.
Part and parcel of classical liberalism are the apparent justifications of governmental authority we find in the Enlightenment works of philosophers such as Locke and Jean Jacques Rousseau. Enlightenment liberalism, particularly Locke’s, concerned itself with understanding why the state exists, with what it is that makes the state unique, and how it comes to possess the consent of individuals. For classical liberals such as Epstein, the social-contract theorists successfully answered the challenges to political authority, providing an account that shows the coercive apparatuses of the state can be squared with the inalienable rights of the individual. If we grant the claim that coercive political authority is justified, then naturally only considerations about practical expediency ought to guide us to our conclusions about what the state should do through its instrument, the law. But it’s that underlying question — whether state coercion can be justified — that is indeed so problematic from a philosophical standpoint that, if not dealt with, undoes the careful, “distinctive synthesis of constitutional law” that Epstein fashions in his book.
Epstein contends that “hard-line libertarian views” break down in their failure to successfully tell a story about “how states rightly gain the legitimacy and the resources needed to prevent violence, enforce contractual promises, and supply needed social infrastructure.” But he does exactly what he accuses “hard-line libertarians” of doing, asserting that, in attempting to shape the best possible polity, we ought to look to some external philosophy, independent of, for example, precedent or the text of the Constitution. Pressed to decide, therefore, between two systems in abstraction, both now strictly hypothetical, it is not at all clear why we shouldn’t choose the more consistent, the political philosophy that fully and unswervingly conforms to the demands of individual rights and private property.
The error of The Classical Liberal Constitution is in seeing something in the extraction of the Constitution that just wasn’t there. Certainly some of the Founders shared Epstein’s understanding of classical liberalism, his attitudes about, for example, the role of private property and the need for free trade. But it is not the case that the Founders held a “common political philosophy,” or that “they operated behind a veil of ignorance” regarding their interests and how best they would be served. Even if we grant that all of the Founders were liberals in the broad sense, liberalism has manifested itself in countless forms. Furthermore, to assert that the Founders shared a common political philosophy merely because of their “agreement over ends, with disagreement on means,” is to assert far too much. Indeed, “disagreement on means” is, as the Founders well understood, no small thing, with political philosophy itself largely, if not mostly, worried about means.
For all of the book’s talk about limiting the functions of government, Epstein ultimately believes that taxes and regulations can properly and effectively be used for “overcoming coordination problems for public goods — e.g., infrastructure — that generate across-the-board benefits.” However clear Epstein’s “third approach” may seem to him, unless we hold to the principle that aggression against innocents is always wrong, it is not at all clear how we are to know where to draw the line that separates what government can do from what it can’t do. Epstein writes better than he knows when he says that “the Constitution is not a libertarian document.” Still, The Classical Liberal Constitution stands as a forceful strike at the legal philosophy that has allowed the federal government to grow out of control, a constant threat to life, liberty, and the pursuit of happiness.