Since Israeli elites cannot control society through the political process, they have looked for other ways.
Constitutional Compromise and Classical Liberalism
Across the conservative legal movement, there is a reassessment of the principles that have guided legal conservatives since the end of the Warren Court. Ideas that were once orthodoxy are now open to question. At the level of doctrine, the movement’s longstanding defense of Chevron has been replaced with the deep unease evinced by the dissenters in City of Arlington v. Federal Communications Commission. At the level of theory, broad deference to the political branches has slowly given way to a recognition that a judge’s primary obligation is to the text of the Constitution, not to those who happen to occupy power. Perhaps nothing has symbolized this latter shift more than the intense criticism of Chief Justice Roberts’ opinion in NFIB v. Sebelius, an opinion that goes to great lengths to accommodate the political branches.
Richard Epstein’s new book therefore arrives at an auspicious moment, a moment of self-reflection within the conservative legal movement. Epstein proposes a theory whose outline will prove attractive to legal conservatives. He acknowledges that originalism has a role to play in constitutional adjudication, insofar as words cannot “have whatever meaning that the justices, the legislators or the president decide to give it.” But he insists that “the written text, standing alone” cannot “unlock the meaning of general constitutional provisions.” Rather, Epstein argues that these inevitable “gaps” in meaning must be “filled in by a conceptual analysis that links the basic textual provisions to the larger constitutional purposes of limited government.”
Those purposes, in Epstein’s view, are found in the theory of classical liberalism, “which is why this book is called The Classical Liberal Constitution.” That Epstein resorts to classical liberalism to fill in the gaps can be seen in his essay’s analysis of the Supreme Court’s jurisprudence from Reconstruction to the New Deal. In discussing rate regulation, antitrust, and taxation, Epstein cites the need, for instance, to be “relentless in th[e] pursuit of cartel and other monopoly arrangements” while being “careful not to convert the antitrust laws into tools for creating and protecting monopoly power.”
Although it is not entirely clear, it appears, then, that Epstein hews to the distinction that has dominated recent originalist scholarship: the difference between interpretation and construction. Interpretation, on this view, is concerned with the original meaning of the constitutional text; it is a historical inquiry. Construction, by contrast, is the process of applying the original meaning to concrete cases, involving the development of the doctrines, precedents, and tests. Construction is most prominent when the text is vague and cannot be applied directly. According to scholars like Randy Barnett, Jack Balkin, and others, originalism defines the outer limits of construction, but it does not supply the content of construction. Barnett’s theory of construction is heavily informed by libertarianism, whereas Balkin’s is rooted in a living constitutionalist vision. Epstein, it seems, looks to classical liberalism for construction.
But on what basis should we choose one theory of construction over another? On this critical question, Epstein has much less to say in his essay, but his book sheds more light. There he writes that “our Constitution is most emphatically a classical liberal document.” Classical liberalism “animated the drafting of the original text,” such that it “forged the common link between the Federalists . . . and the Anti-Federalists.” Epstein is careful to note that “there is no perfect correspondence between the classical liberal theory and the constitutional text,” but he is quick to add that “the constitutional provisions with the longest staying power have consistently drawn their strength from classical liberal theory.” In his book, then, Epstein appears to be making a historical claim about the background theory of the Constitution: that because classical liberalism infuses the text of the Constitution, it should guide the application of the text to concrete cases where the original meaning does not, by itself, supply an answer.
But from the premise that classical liberalism was the background theory of the Constitution, it does not follow that using classical liberalism as a method of constitutional construction comports with the history and text of the Constitution. As Epstein acknowledges, there is “no perfect correspondence” between classical liberalism and the Constitution. But even that caveat understates the difficulty: far from being the embodiment of a consistent political theory, the Constitution was the product of compromise. Superimposing classical liberalism over the constitutional text substitutes the theoretical perfections of academicians for the careful compromises of the Founding. In attempting to be faithful to the Constitution’s history, Epstein’s theory oversimplifies it.
As Max Farrand once said, the Constitution is a “bundle of compromises.” John Manning, in an article on the debates of the Constitutional Convention, has persuasively argued that “those who actually hammered out the [Constitution] frequently were not driven by large principles or the great outlines of policy. The delegates did not fill their days with abstractions about federalism or the separation of powers. Rather, they acted on hard-edged, practical concerns about the allocation and effective exercise of government power.” One need only look at the text to confirm this conclusion. As Manning says, “The document itself does not contain merely broad statements of principle, but instead expresses policies at widely variant levels of generality,” indicating attention to the ways in which principles were to be given effect.
The same emphasis on compromise—as opposed to pure theory—is evident in the ratification debates. No reader of Pauline Maier’s excellent book on the ratification period can come away believing that the Constitution is classical liberalism reduced to rules of governance. To be sure, both sides in those debates repeatedly appealed to abstract principles. But time and again, those defending the proposed constitution emphasized the painful compromises that all sides had to make in order to agree on a single charter of government and the danger of undoing that delicate craftsmanship. The Constitution was, in short, the product of practical statesmen informed by political theory, not the result of political theory embodied in rules.
This is an important distinction. Epstein may very well be correct that the Founders were all classical liberals, but as Manning observes, the history of the Convention suggests that “the Constitution resulted from compromises that paid careful attention to the means, as well as the ends, of government.” That is to say, the Constitution instantiates its political vision in specific ways, with attendant limitations on that vision. Ours is not a classical liberal Constitution; it is an American Constitution influenced by classical liberal principles.
In this sense, our revolution was quite different from that of the French. It was Burke who famously said of the French National Assembly that “the best were only men of theory,” men infatuated with their own abstractions to the exclusion of experience. Whereas our Founders looked to Montesquieu—who emphasized the need for law to be grounded in the culture and history of a people—the French followed Rousseau, whose lack of intellectual humility compelled Burke to call him the “insane Socrates of the National Assembly.” Our Constitution was made to fit the particular character and circumstances of our people; it was not made to satisfy the scruples of theorists.
Of course, principles of limited government served as the backdrop for various constitutional provisions. Federalism, popular sovereignty, separation of powers, and other principles are manifest throughout the document, and knowledge of these principles provides crucial context for understanding the constitutional text. Indeed, sometimes the Constitution incorporates this theoretical context by its very terms. The Tenth Amendment, as Justice Thomas compellingly recounts in his dissenting opinion in U.S. Term Limits v. Thornton, requires a background understanding of popular sovereignty. Yet, the Tenth Amendment’s popular sovereignty principle is not some free-floating abstraction; it confirms the Constitution’s allocation of power by reference to the Constitution’s other provisions. Similarly, there is no “federalism clause” or “separation of powers clause” in the Constitution. Instead, these principles are written into the text in particular ways. It would be a mistake, therefore, to impose some abstract conception of these principles onto the Constitution.
Similarly, classical liberalism might supply part of the context for the constitutional text, but the text alone is law. To the extent Epstein proposes the judicial enforcement of classical liberalism where the text does not call for it, he would impose a theoretical consistency that the Constitution does not authorize and that the Founders did not contemplate.
It is possible, of course, that Epstein does not actually intend to justify his theory of construction by reference to the Constitution’s history and text. If, for instance, Epstein’s invocation of classical liberalism is instead based on the attractiveness of that theory’s policy consequences, my historical and textual criticism loses some force, although Epstein would still have to account for why an ahistorical vision of the Constitution should be imposed on the American people by judges.
But regardless of whether Epstein’s attempt at a comprehensive theory of constitutional adjudication succeeds, he has admirably confronted some of the seminal problems of constitutional theory and provided legal conservatives with a challenging alternative as they consider the future of their movement. For that, and for providing me with the opportunity to comment on his marvelous work, I am grateful.