The Classical Liberal Constitution

Richard A. Epstein

• Publisher: Harvard University Press
• Year: 2014
• ISBN:
  9780674727809
• Topic: Diritto
• Subtopic: Diritto pubblico

American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard Epstein laments this complacency which, he believes, explains America's current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers' original text, and to the limited government this theory supports."[An] important and learned book."
—Gary L. McDowell, Times Literary Supplement "Epstein has now produced a full-scale and full-throated defense of his unusual vision of the Constitution. This book is his magnum opus…Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood…All of Epstein's particular discussions are instructive, and most of them are provocative…Epstein has written a passionate, learned, and committed book."
—Cass R. Sunstein, New Republic

PART ONE

PRELIMINARIES

Introduction

Our Two Constitutions

THE UNITED STATES CONSTITUTION must, on any neutral evaluation, count as the greatest triumph of political statecraft in the history of the world. That achievement is all the more remarkable because it came in the face of immense practical and theoretical difficulties. The Constitutional Convention in Philadelphia was called together to remedy the manifest ills of the Articles of Confederation that had governed the United States since 1781. But the Founders quickly went beyond their original mandate, with obvious misgivings, after concluding that the basic structure of the Articles, with its ineffectual national government, was beyond repair. Their self-imposed task of nation-building, moreover, did not align itself neatly with the major classical political theory teachings of Thomas Hobbes, John Locke, Montesquieu, or David Hume. The Framers did not seek to forge a government for individuals living together in uneasy harmony in the state of nature. Rather, they sought to form a federal government consisting of individual states, which were already full-fledged sovereigns and signatories to the now-imperiled Articles.

The obstacles encountered in Philadelphia were sufficient to ward off any utopian beliefs in the perfectibility of man or civil society. The Articles of Confederation had achieved some major triumphs, including the passage of the Northwest Ordinance in 1787. But the structure had proved weak insofar as it did not provide for any executive authority or give the national government the direct power to tax. Both of these structural features touched a sensitive historical nerve, for the former raised the specter of arbitrary royal power, while the latter recalled fierce colonial objections to British taxes in the run-up to the Revolutionary War. Working their way through these difficulties required the Framers to correct the disadvantages of weak central government, while heeding the somber warnings of their intellectual heroes who, for all their differences, agreed with Thomas Paine when he wrote: “[G]overnment even in its best state is but a necessary evil in its worst state, an intolerable one.”¹

The point is worth some explication. The basic dilemma in theory and constitutional design was, and is, just this: to maintain order without destroying liberty. A government that is too strong can become tyrannical and oppress its citizens; yet a government that is too weak cannot withstand a succession of internal upheavals or external attacks, which eventually take their toll on the well-being of its citizens, with catastrophic loss of liberty and destruction of property. The key challenge was to determine how best to navigate between these two perils. Michael McConnell has succinctly summarized the Framers’ basic position: “The classical liberal tradition emphasizes limited government, checks and balances, and strong protection of individual rights.”² What rights? Strangely enough, that probing question had, for the Framers, clear answers: their conception of rights embraced the liberty of action, the ownership of private property, and the freedom from arbitrary arrest and prosecution. A right to housing, health care, or a decent income—or indeed any positive entitlement against government—was not on their list, or even a distant image on their intellectual horizon.

Implementing their middle road was no easy matter given the Framers’ precarious legal position. It is no wonder that their deliberations produced awkward compromises, omissions, and redundancies—not to mention major blunders of historical proportion, some of which became painfully evident shortly after the ink on the Constitution was dry. Still, the Constitution has survived these bumpy patches—and one deadly Civil War—because of its core commitment to a coherent set of political principles. Even so, the tread-wear is obvious because more than two centuries of continuous pounding has inevitably led to major revisions. Some of these were conscious efforts to fix glitches in the original structure, such as the Twelfth Amendment, which radically altered the rules for selecting the vice president. Other changes, like the removal of the odious and oblique acceptance of slavery (a word not used in the Constitution) and the extension of suffrage to women, became irresistible with time. These major modifications came by two constitutional amendments: the Thirteenth Amendment (1865) abolished slavery in the United States and the Nineteenth Amendment (1920) guaranteed women the right to vote. The Constitution has also been transformed by judicial reasoning through sensible analogies that have preserved and extended the original classical liberal position. Freedom of the press, reasonably enough, covers the broadcast media that were unknown in 1791. The commerce power covers all modern modes of transportation, not just horses and buggies.

The greatest challenge to the original constitutional plan comes not from these inevitable and salutary historical adaptations, but from a conscious reversal of philosophical outlook on the proper role of government. It is often tempting to paper over the depth of these philosophical conflicts by claiming various kinds of ongoing disputes are amenable to “incompletely theorized agreements”³ that allow people with fundamentally different views to find common ground in deciding concrete cases. That argument may work when supporters of abortion cannot decide whether to rest their case on a woman’s right to privacy or on a theory of sex discrimination. But that benign compromise does not work to broker the difference between pro-choice and pro-life groups. The people who think that life begins at conception will not take kindly to their opponents who are hard-pressed to see or respect any difference in ontological status between an embryo and a lock of hair.

The more accurate description of the present impasse is that the recurrent and sharp splits on constitutional law come from what are more accurately described as “completely theorized disagreements” on all fundamental legal questions. These current disputes start with basic disagreements about human nature, language, knowledge, and institutions. On this score, the differences between the Federalists and the Anti-Federalists were less important than their shared assumptions. Their entire debate rested on a sober and shared appreciation of the potentially corrosive effects of self-interest on human affairs, a modest confidence that our collective capacities with language and cooperation allow us to devise institutions capable of coping with these ever-present risks without bringing government to a standstill, and a deep suspicion of government monopolies of all sorts and descriptions. At root, the classical view of American constitutionalism examined all legal interventions under a presumption of error. The structural protections of the separation of powers, checks and balances, federalism and the individual rights guarantees built into the basic constitutional structure were all part of combined efforts to slow down the political process that, left to its own devices, could easily overheat.

Starting with the rise of industrialization in the post–Civil War period and gaining traction after 1900, the pendulum on political philosophy and constitutional theory swung sharply away from these twin verities of private rights and limited government. In their place arose a different understanding of the relationship of the individual to the state. That new vision rested on an intellectual worldview that dominated the Progressive Era, which ran from about 1900 to 1932. Under President Franklin Delano Roosevelt, that philosophy quickly formed the foundation for the modern New Deal constitutional order, which received its whole-hearted judicial blessing during the momentous October 1936 Term of the United States Supreme Court. In that Term, a sharply divided Court decisively repudiated what remained of the classical liberal synthesis, which prized both federalism and the strong protection of economic liberties. The progressives did not view government as a necessary evil, but rather as a positive force for good in a wide range of social situations where the comparatively minimalist classical liberal view was said to have faltered.

The central thesis of this book is that the older view of the Constitution was correct, not only for the conditions of 1787 but also, most emphatically, for vastly more complex conditions today. The book is offered in the spirit of explaining how matters should have evolved and why the original classical liberal constitutional order would have served this nation better than the progressive order that remains ascendant today. The analysis covers both halves of the constitutional enterprise—its structural safeguards and its account of individual rights.

In order to make out this case, I shall compare the classical liberal and the modern progressive, or social democratic, accounts along two parallel tracks. The first of these deals with the political presuppositions used to justify the modern social democratic state that the progressives championed, and the second deals with the thorny issue of textual interpretation.

On the philosophical level, the shift to a social democratic model during the New Deal period was anchored in two central premises. The first is that individual rights are not just protected by state power, but are in some deep sense created by the very government agencies whose power our Constitution is intended to limit. Any theory of natural law in the tradition of John Locke’s Second Treatise of Government⁴ that posits rights of liberty and property antecedent to the state had to be rejected as philosophical mumbo-jumbo or political naiveté. The second is that the benevolent force of state power, exercised by dedicated and impartial administrative experts, can eliminate the chronic economic imbalances wrought by the unprecedented scale of industrialization that untamed market forces had driven. These new historical imbalances were said to falsify the premises of laissez-faire, which one of the prime defenders of the modern administrative state, James M. Landis, defined in 1938 as “the simple belief that only good could come by giving economic forces free play.”⁵ The progressive spirit of the early twentieth century sought to keep the Constitution in tune with the times. It did not believe, as Walter Berns once famously quipped, that the proper social goal is not “to keep the Constitution in tune with the times but, rather, to keep the times, to the extent possible, in tune with the Constitution.”⁶

Put otherwise, to the progressive mindset, the traditional safeguards against excessive state power that animated early constitutional theory on both structural issues and property rights were perceived as pointless roadblocks that the modern technological state should overcome through a greater concentration and use of government power at all levels. The progressive prescription called for expert modern planners to exercise this power through administrative agencies that derive their authority from the legislature and typically displace the ordinary courts of justice as the major arena for dispute resolution. In effect, the giant social exchange wrought by the administrative state requires all persons to cede a large portion of their common law property rights (especially as they relate to the ability to enter and exit markets) in exchange for the rights, first, to participate in the democratic procedures that set the rules of the game and, second, to appear before the administrative agencies that carry out the legislative mandate. The Administrative Procedure Act of 1946 represented the solidification of this view in the decade after the New Deal.⁷

Once the progressives laid out their views on the proper social role for government action, their second challenge was to square that vision with a constitutional text that on its face did not cede all control over major economic and social issues to the legislature. That attack on the Constitution took place on multiple levels simultaneously. The first of these was their claim that the key terms of the Constitution—legislative, executive, and judicial power, or commerce, property, freedom of speech, and so on—were subject to deep and inescapable definitional ambiguities. These uncertainties sapped key constitutional terms of the intellectual clarity and power needed to block the changes in governance structure that modern thinkers thought desirable on substantive grounds.⁸ There is no deviation from the rule of law and no usurpation of power if all constitutional commands are clouded by cognitive or linguistic deficits that wise progressive justices could overcome with astute textual interpretation. It is as though the progressives thought they exposed some deep conceptual incoherence in an effort to draft a Constitution that was faithful to the classical liberal ideals. Second, modern interpretivists have tirelessly trumpeted the claim that it is not now, and probably never was, possible to develop a coherent “originalist” interpretation of any constitutional text. No one can achieve the thankless task of sifting through the manifold intentions of the many individuals who participated in drafting or ratifying particular constitutional provisions. Third, the modern progressives insist that the huge changes in social circumstances from the time of the original Constitution to the present require a fresh solution that depends on expanded governments, both federal and state, to manage the constant individual and group conflicts that necessarily arise in an ever more complex and interdependent social environment. Fourth and finally, they claim that major issues concerning the public welfare should not be decided by unelected judges, but instead by the people acting collectively and responsibly through their elected officials, under the systems as they now exist at both the federal and state levels. The bottom line is that the progressives thought, and their contemporary disciples continue to think, that the plasticity of the constitutional text in the face of a radically new social environment leaves far greater running room for government action than any classical liberal conception could ever tolerate.⁹

I believe that this alluring constellation of theoretical and linguistic arguments is wrong at every point. Any counterattack, however, must guard against the risk of overclaiming in favor of the earlier classical liberal position. Most emphatically, there is no perfect correspondence between the classical liberal theory and the constitutional text: its backhanded acceptance of slavery alone is a devastating refutation of that position. Nonetheless, the constitutional provisions with the longest staying power have consistently drawn their strength from classical liberal theory. Surely the protection of freedom of speech, religion, and contract (in no particular order) have greater appeal than the reviled provisions dealing with the Three-Fifths Rule¹⁰ and the Fugitive Slave Clause,¹¹ both of which were introduced as a matter of political compromise, not political principle. To be sure, in any normative inquiry the political theory should dominate, even as it is informed by the constitutional text. On the other hand, in judicial contexts, the interpretive issues should dominate, at least in relatively clear cases. Yet legitimate ambiguity is sometimes unavoidable, and on those matters constitutional text and political theory no longer fall into watertight compartments. At this juncture our basic conception of the proper scope of government action will, and should, influence the resolution of key interpretive disputes. Filling in those lacunae fully reveals the profound differences in attitude between the classical liberal and the modern progressive.¹² The classical liberal is far more likely to undertake a detailed textual analysis before making appeals to changed circumstances or contemporary mores. The modern progressive is much more likely to adopt the opposite strategy.

These differences matter, for my full-throated defense of classical liberal positions leads me to conclusions on many issues that are at sharp variance from those of both modern liberals and conservatives. For all their differences on social policy, the two dominant groups gravitate toward a shared progressive outlook on key constitutional questions. Thus, on the qu...