The Classical Liberal Constitution: The Uncertain Quest for Limited Government.
By Richard A. Epstein.
Harvard University Press 2013.
ISBN: 9780674724891, 0674724895.
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.
Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.
Epstein’s carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government’s role in regulating economic activity, freedom of speech and religion, and equal protection.
Table of Contents
Preface: My Constitutional Odyssey
Part One: Preliminaries
Introduction: Our Two Constitutions
1. The Classical Liberal Synthesis
2. The Progressive Response
3. Constitutional Interpretation: The Original and the Prescriptive Constitutions
Part Two: Constitutional Structures
Section I: The Judicial Power
4. The Origins of Judicial Review
5. Judicial Review: Marbury and Martin
6. Standing: Background and Origins
7. Modern Standing Law
8. The Political Question Doctrine
Section II: The Legislative Power
9. The Commerce Power: Theory and Practice, 1787–1937
10. The Commerce Clause in Transition: 1865–1937
11. The Commerce Clause: Transformation to Consolidation, 1937–1995
12. Constitutional Pushback: 1995 to Present, from Lopez to NFIB
13. Enumerated Powers: Taxing and Spending
14. The Necessary and Proper Clause and the Monetary Constitution
15. The Dormant Commerce Clause
Section III: The Executive Power
16. The Executive Power
17. Delegation and the Rise of Independent Agencies
18. Foreign and Military Affairs
Part Three: Individual Rights
Section I: Property, Contract, and Liberty
19. From Structural Protections to Individual Rights
20. Procedural Due Process: Implementing the Classical Liberal Ideal
21. Freedom of Contract
22. Takings, Physical and Regulatory
23. Personal Liberties and the Morals Head of the Police Power
Section II: Speech
24. Freedom of Speech and Religion: Preliminary Considerations
25. Free Speech: Force, Threats, and Inducements
26. Fraud, Defamation, Emotional Distress, and Invasion of Privacy
27. Government Regulation of the Speech Commons
28. Progressive Regulation of Freedom of Speech: Labor, Communications, and Campaign Finance
Section III: Religion
29. Religion: Free Exercise
30. The Establishment Clause: Theoretical Foundations
31. Regulation and Subsidy Under The Establishment Clause
32. Establishment: The Commons
Section IV: Equal Protection
33. Race and the Fourteenth Amendment
34. Citizenship and the Fourteenth Amendment
35. Equal Protection and Sex Discrimination
Part Four: Conclusion
36. Conclusion: The Classical Liberal Alternative
Index of Cases
Richard A. Epstein is Laurence A. Tisch Professor of Law at New York University School of Law, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School.