The Classical Liberal Constitution: The Uncertain Quest for Limited Government

701 Pages·2014·1.643 MB·English

by  Richard A. Epstein

The Classical Liberal Constitution

T H E
CLASSICAL LIBERAL
CONSTITUTION
(cid:42)(cid:33)
The Uncertain Quest
for Limited Government
.
RICHARD A EPSTEIN
HARVARD UNIVERSITY PRESS
Cambridge, Massachusetts
London, England
2014
Copyright © 2014 by Richard A. Epstein
All rights reserved
Printed in the United States of America
Publication of this book has been supported through the generous
provisions of the Maurice and Lula Bradley Smith Memorial Fund.
Library of Congress Cataloging-in-Publication Data
Epstein, Richard Allen, 1943–
The classical liberal constitution : the uncertain quest for limited
government / Richard A. Epstein.
pages cm
Includes bibliographical references and index.
ISBN 978-0-674-72489-1
1. Constitutional law—United States. 2. Liberalism. I. Title.
KF4550.E69 2013
342.73—dc23 2013015767
To Eileen again, for everything,
and
To the Memory of David Currie (1936–2007)
constitutionalist extraordinaire

Contents
Preface: My Constitutional Odyssey ix
PART ONE: PRELIMINARIES
Introduction: Our Two Constitutions 3
1. The Classical Liberal Synthesis 17
2. The Progressive Response 34
3. Constitutional Interpretation: The Original and the
Prescriptive Constitutions 45
PART TWO: CONSTITUTIONAL STRUCTURES
Section I: The Judicial Power
4. The Origins of Judicial Review 77
5. Marbury and Martin 86
6. Standing: Background and Origins 101
7. Modern Standing Law 119
8. The Political Question Doctrine 133
Section II: The Legislative Power
9. The Commerce Power: Theory and Practice, 1787–1865 147
10. The Commerce Clause in Transition: 1865–1937 158
11. The Commerce Clause: Transformation to Consolidation,
1937–1995 168
12. Constitutional Pushback: 1995 to Present, from Lopez to NFIB 183
13. Enumerated Powers: Taxing and Spending 194
14. The Necessary and Proper Clause 210
15. The Dormant Commerce Clause 227
viii Contents
Section III: The Executive Power
16. Basic Principles and Domestic Powers 247
17. Delegation and the Rise of Independent Agencies 267
18. Foreign and Military Affairs 285
PART THREE: INDIVIDUAL RIGHTS
Section I: Property, Contract, and Liberty
19. From Structural Protections to Individual Rights 303
20. Procedural Due Process: Implementing the Classical
Liberal Ideal 314
21. Freedom of Contract 337
22. Takings, Physical and Regulatory 347
23. Personal Liberties and the Morals Head of the Police Power 367
Section II: Speech
24. Freedom of Speech and Religion: Preliminary Considerations 383
25. Force, Threats, and Inducements 395
26. Fraud, Defamation, Emotional Distress, and Invasion
of Privacy 406
27. Government Regulation of the Speech Commons 423
28. Progressive Regulation of Freedom of Speech: Labor,
Communications, and Campaign Finance 437
Section III: Religion
29. Free Exercise 461
30. The Establishment Clause: Theoretical Foundations 481
31. Regulation and Subsidy under the Establishment Clause 492
32. The Commons 503
Section IV: Equal Protection
33. Race and the Fourteenth Amendment 521
34. Citizenship and the Fourteenth Amendment 541
35. Equal Protection and Sex Discrimination 554
PART FOUR: CONCLUSION
Conclusion: The Classical Liberal Alternative 569
Notes 585
Index of Cases 653
General Index 665
Preface: My Constitutional Odyssey
The Classical Liberal Constitution represents the culmination of my lifetime
project of developing a distinctive synthesis of constitutional law that
does not fall squarely within either the conservative or progressive camp.
I started work on this volume in 2006, fi nished a fi rst draft in 2010, and
have done extensive revision and expansion of the book to prepare it
for publication in late 2013. At one level, my ambition has been 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.
That theory in turn starts from the twin pillars of private property and
limited government, and seeks to make sure that each and every govern-
ment action improves the overall welfare of the individuals in the society
it governs. It is no part of the theory to extol any version of philosophical
egoism that allows any individual to do what he or she will no matter
what the consequences to others. Classical liberalism is a social theory,
not the magic paean of radical individualism with which it has often been
confl ated, especially by its detractors on all sides of the political spectrum.
In the course of my thinking on this subject, it became increasingly
clear that an examination of constitutional law principles must start
with the text of the Constitution. But that truism is not a full-throated
endorsement of the strong modern defenses of constitutional original-
ism. The harder one probes, the more apparent it becomes that analysis
must go quickly beyond that starting point in order to fi ll in the details
of the larger picture of which the text is an indispensable part. In partic-
ular, the Constitution makes liberal use of such terms, taken in alpha-
betical order, as “citizen,” “commerce,” “contract,” “cruel and unusual