A Constitution Neither Living Nor Dead

Andrew Sullivan —  Aug 3 2014 @ 6:32pm

Reviewing Richard Epstein’s The Classical Liberal Constitution : The Uncertain Quest for Limited Government, Stephen Rohde describes how the libertarian-leaning law professor offers an an approach to constitutional interpretation “which ‘starts from the twin pillars of private property and limited government’ and emphasizes federalism, separation of powers, and economic liberties.” Despite such concerns, Epstein is no originalist:

Epstein takes “originalists,” such as Justice Antonin Scalia, to task for their insistence that all constitutional issues must be based on the text of the Constitution as publicly dish_US constitution understood in 1791. Sounding very much like the “living Constitution” proponents he’s about to criticize, Epstein points out that conservative originalists cannot remain faithful to the text because “the Constitution is written in broad bold strokes, which at some points confer vast powers on government and at others impose major limitations on their exercise.”

He rejects the originalists’ “cramped mode of interpretation which, ironically, is not faithful to the dominant interpretive norms of the Founding period,” because “in no legal system at any time could the question of construction be reduced to a search for original public meaning of terms that are found in the constitutional text.” Epstein also observes that the originalist view “offers no basis for the implication of additional constitutional terms that are dependent on either government structure or the nature of individual rights.” Consequently, “a bare text raises more questions than it answers,” which make it imperative “to isolate the general theory that animates the text — usually the protection of personal autonomy, liberty, and property.”

In an earlier review, however, Cass Sunstein reminded us that progressives are the real enemies of Epstein’s vision:

To give content to what he calls (controversially) “the classical liberal vision,” Epstein offers a foil, the villain of the piece, which he calls the “modern progressive” or “social democratic” approach. He identifies that approach with the 1930s, when, he urges, policymakers jettisoned “the traditional safeguards against excessive state power.” As a matter of law, their ill-advised, and constitutionally illegitimate, reforms became possible for two reasons. First, the progressives saw ambiguity in the constitutional text, thus licensing those reforms. Second, the progressives insisted that unelected judges should recede in favor of We the People, acting through elected representatives. Epstein does not deny that the Constitution is sometimes ambiguous. Importantly, he acknowledges that “our basic conception of the proper scope of government action will, and should, influence the resolution of key interpretive disputes.” But he emphasizes that a “detailed textual analysis” has priority over our preferred views about political theory.

Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood. In many places his discussion is highly technical, but in some important respectsof course not in allyou can take it as a careful and sophisticated guide to Tea Party constitutionalism.

(Image of first page of the US Constitution via Wikimedia Commons)