An Imperial but Classically Liberal Court?
Frohnen, Bruce P., Modern Age
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. …