Richard Epstein Responds: Personal Liberty, Private Property and Limited Government Are Still the Keys to National Prosperity and Success

I should like to thank my three commentators for their observations on my lead essay. Those remarks by Gail Heriot (my former student, I am proud to say) and Joel Alicea are decidedly in the friendly camp, and thus need little response. The comment by my friend Frank Buckley shows a good deal of Canadian angst about my interpretation of the United States Constitution, and will require a somewhat more detailed response. Let me take up the three authors in order.

My first observation is to thank Heriot for putting into high relief what we both see as the central tension of modern conservative thought on constitutional law. Quite simply, it is not possible to ignore the great difficulty that arises between the fidelity to constitutional text on the one hand, and the belief that courts play at most an interstitial role in the interpretation of key constitutional provisions. Just that position as taken recently by J. Harvie Wilkinson in his Cosmic Constitutional Theory: Why Americans Are Losing their Inalienable Right to Self-Governance, which I have already criticized elsewhere. There is of course a serious problem that unelected judges will run roughshod over the key collective decisions in a democratic society. But there is the equally great problem that elected public officials will pass laws that run over the rights of ordinary citizens that societies in good Lockean fashion were organized to protect.

The tension between these two risks cannot be resolved with a wave of the hand. It takes serious work to figure out which areas belong in the public domain and which belong outside of it. It just begs the difficult question to talk about some collective “inalienable right to self-governance,” when the most conspicuous use of the term “unalienable” comes in the Declaration of Independence which contains Jefferson’ loud echo of the basic Lockean position.:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .

To start with this position makes the position of judicial restraint unravel at two levels. As Heriot points out, it is difficult to square a full-throated endorsement of the rational basis standard of review at the constitutional level. It is equally difficult to square it with the modern version of administrative deference under the doctrine of Chevron U.S.A., Inc. v. National Resources Defense Council, Inc.. Contrary to the basic structure of the Administrative Procedure Act, Chevron requires the courts to defer to administrative agencies in the interpretation of their statutes, especially as she points in connection with jurisdictional issues, as Justice Scalia unwisely concluded in City of Arlington v. FCC.

Indeed, the only quibble that I have against Heriot’s argument is that she should be more cautious about the use of the “term” democratic in this context. The term does not appear in the Constitution, which instead states in Article IV, section 4 that “The United States shall guarantee to every state in this union a republican form of government, . . .” Indeed in 1787, the difference stemmed from a conscious recognition of the need for complex governance structures to guard against the majoritarian risks of a popular democracy. Exactly where the line between collective decision and individual choice should be drawn is never clear. In The Classical Liberal Constitution I argued that the only activities that should be on the public side of the line is the provision of public goods, such as defense and infrastructure, and the management of those affairs entrusted to government, wisely or not.

The key point here is that the activities of ordinary firms in private businesses should normally be protected against state regulation except to the extent that remedies are needed to control against the ever present risk of force, fraud and monopoly. It is an open question whether I have succeeded in making this classification work, but I am extremely grateful to Heriot for her endorsement of the general scheme.

In his thoughtful comments on my essay, Alicea stresses more the interpretive strand than the institutional one. But clearly the two point in the same direction, as is evident by the fact that he cites the dissenters in City of Arlington as the source of massive discontent with Chevron’s current deferential synthesis of administrative law. In my view, however, he goes astray in thinking that the key distinction is between the interpretation of text on the one hand and its construction on the other. To be sure, that line seems to have some drawn some attention by modern scholars, but I think that it is of little or no use in dealing with the question of interpretation.

Here’s why. Any question dealing with the meaning of terms will have to deal first with questions of semantic meaning, and then with the question of application in particular cases. Thus we have to figure out what the word “speeding” means to make sense of many traffic laws, and we then have the question of how to apply that term in particular context where there can be both uncertainty as to how fast a particular party was driving, and much dispute over whether the relevant circumstances—weather, traffic, condition of the road—were extenuating or incriminating.

That is surely a key element in any constitutional theory, but it is not the issue that is raised by asking how, for example, the police power—a term found nowhere in the Constitution—fits into the explication for both individual rights on the one hand and constitutional governance structure on the other. The point is that the police power is a compendium of the various justifications that the government can put forward on behalf of its actions in both settings. That question is both different from and in addition to the issues of deciding the meaning of constitutional text on the one hand and applying it in individual cases in the other.

The question, then, is how does a judge identify both the existence of and the applicable scope of that police power? It is here that the connection to the common law is the closest because every single proposition of ordinary torts and contracts law—do not hit another person, do not break your promises—are subject to a range of exceptions that are consistent with the basic fabric of the law. You may hit in self-defense. It may be proper not to perform in cases where the other party has not performed first, or where a promise was induced by force or fraud. The only coherent explication of these elements draws on the classical legal theory that animates the creation of the initial right in the first place. The theory that creates the prima facie case by pointing out the wrongs of the defendant also creates the prima facie case for regulation by pointing out the wrongs of the individual.

There remains the question of just how far the general approach carries over to the American Constitution. Alicea is surely right that the Constitution is a bundle of compromises, but that itself does not negate the force of the basic proposition above, for given the text that we have, it is critical to figure out what, for example, freedom of speech and the free exercise of religion mean in connection with either fighting words or human or animal sacrifice.

The dangers of an undue historical approach is that it looks for these answers in the particular deliberations of the Framers who took the tack of letting these issues be resolved through judicial interpretation as it has been with other general propositions. But the standard defenses mentioned above are not references to some particular circumstances of the Founding period, but reflect as noted above the constant concern with force, fraud and monopoly as the private threats to public welfare. It is only with those in mind that we can make sense of the particular text that we do have.

To be sure, all constitutional texts do not present the same problems. The notion of the police power does not have much relevance to the length of the term for the President, a member of Congress or a Senator. But obviously they loom large in other contexts. The task of constitutional interpretation needs to take into account the particulars of text, and much of The Classical Liberal Constitution, dealing with such issues as cruel and unusual punishments and the right to keep and bear arms is of that sort. But those techniques can only go so far. Either one faces the issues of circumvention, justification and remedy as I outline them in Chapter Three or the resulting constitutional theory will be unequal to the challenge of interpreting the Constitution.

Professor Buckley is “terribly sorry” to have come late to the show. Indeed, as best I can tell, he has missed the entire performance. The question is not, as he suggests “the part where the classical liberal gets to write the Constitution.” No this play is not about some once and future constitution. It was about the one written by the Founders who were in fact classical liberals who believed individual liberty of speech and religion, the protection of private property and the virtues of limited and divided government. It may well be that “no great historical problem has ever been settled by means of a brilliant idea.” Fortunately, the U.S. Constitution does not consist of one great brilliant idea, but of many that were stitched together in a form that allowed them to last.

I will go further. Anyone who reads the debates between the Federalists and the anti Federalists has to be struck about the breadth of their agreement on the proper ends of (a very small) government, notwithstanding their differences over the means to achieve those ends, especially on the details of a federal system, and the explicit protections of a Bill of Rights, which are to this day still a source of honest disagreement.

To be sure, as I insisted in The Classical Liberal Constitution, the Constitution contains some bad ideas, many of which have been removed by Amendment. But the core of the document works because it is animated by a theory that links together key ideas of structures and rights in a fashion that can outlast its skeptics.

Indeed, what is striking about Buckley is that his argument is against the entire approach of American Constitutionalism. Why else would he refer to situations where “one Parliament reverses a prior Parliament.” To be sure, he is right to say that right now, given the current American structure, my first agenda is to repeal a host of bad laws that are already in place rather than to enact new ones. But that is only because lax principles of constitutional interpretation have allowed so many laws to gain root after which they are, as Buckley points out, so difficult to remove. At times that has led me to take the general position that it should be easier to repeal laws generally than to enact them, thus breathing some concrete life into the view that all laws should be examined under a presumption of error.

It hardly follows, however, that the Canadian system that does have a legislative override of judicial review is the best mechanism for dealing with this problem. Thus Section 33 of the 1982 Canadian Charter provides that the Parliament of a provincial legislature may explicitly overturn a judicial decision declaring a law unconstitutional, but at most for five years. There is much to be said on both sides of this debate, because in the abstract it is hard to say whether the legislature or the original judicial decision had the outcome right.

Indeed, much recent legislation, including Obamacare and much of Dodd-Frank, should be unconstitutional in my view. If so, then there is less reason to worry about the question of how to reverse bad legislative decisions. Buckley is right to say that it is wrong to let the President do this unilaterally, which is why Article II, Section 3 of the United States Constitution does contain a provision, all too often ignored of late, that the President “shall take care that the law be faithfully executed.” I share his condemnation of the actions of the Obama administration that has taken Presidential power to new heights. But it hardly follows that the sensible thing is to allow for reversibility of key decisions, for often the Court gets it right.

Therein is the great challenge of government. The world today is not filled with classical liberals, and there is no doubt that many modernists want the very kind of social and economic legislation that they prize. But I still stand by the proposition that the best shot for a long-term sustainable government follows those principles as enunciated in The Classical Liberal Constitution. Indeed our greatest peril comes from the ever greater determination to double down on the constitutional and policy mistakes of the New Deal. Notwithstanding Buckley’s cautionary words, the issues of institutions and interpretation raised by both Heriot and Alicea will not disappear quickly from debates over the scope and meaning of the United States Constitution.


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