Category Archive 'Richard Epstein'

21 May 2014

Cass Sunstein Reviews Richard Epstein

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Classical liberal constitution

The Progressive statist Sunstein is surprisingly temperate in tone and respectful of Richard Epstein’s new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, though he does throw in a number of pejorative references to the Tea Party.

Sunstein, however, does adroitly read Epstein out of what he considers the qualified and legitimate body of Constitutional Law scholarship, identifying him instead as a covert member of an alternate “moral readings” school of constitutional argument, a school of thought pioneered (God help us!) by the egregious sophister Ronald Dworkin.

Epstein’s moral reading is all very nice, Sunstein condescendingly allows, but there are other readings. He moves rapidly to the favorite argument of the legal realist Oliver Wendell Holmes school of Nominalism: there is no consensus. The framers’ truths are not really self-evident, because non-classical-liberals, like Holmes and Sunstein, can simply decline to acknowledge them.

Finally, of course, Sunstein retires complacently to the conservative argument. The Classical Liberal Constitution was overturned once and for all during the New Deal. We now are bound by jurisprudential precedent going all the back to the Spring of 1937. 1787 to 1937 was a period of error which doesn’t count, but one must never presume to meddle with subsequent progressive rulings. The Bill of Rights is ambiguous, completely open to interpretation, and means whatever judges say it means. The decisions of post-New Deal courts are unalterable law.

Epstein did not write [a book steeped in the political thought of the late eighteenth century]. He is much closer to being an Anglo-American political theorist than an American constitutional historian. True, he did not produce his general theory out of thin air. What he calls “classical liberalism” certainly has some connection to the ideas of the great eighteenth-century liberal political theorists, including Locke and Montesquieu, and also to the thinking of America’s founding generation. But we have to be careful here. Epstein’s reading of the theorists and the Founders is not at all obvious or uncontroversial. There are other ways to read them. Many students of the liberal political tradition, such as Stephen Holmes, have raised serious questions about the supposedly libertarian nature of classical liberal theory. It is not at all clear that classical liberal theory, understood in historical terms, is what Epstein thinks it is.

For lawyers and judges, the broader point is that the general theory cannot be found in the Constitution itself. We might doubt, moreover, that as Epstein elaborates it, it would have commanded any kind of eighteenth-century consensus. Without detailed historical support, it remains unclear what it means to say that Epstein’s preferred general theory “animates” the text.

Ronald Dworkin, one of the greatest constitutional thinkers of our time, does not appear in Epstein’s book, but in my view Epstein is playing Dworkin’s game. Dworkin argued in favor of “moral readings” of the Constitution. In his account, the act of interpretation requires judges both to “fit” and to “justify” the Constitution. The requirement of fit imposes a duty of fidelity; judges cannot ignore the text (or other relevant materials). If they do, they are not engaged in interpretation at all. The requirement of justification means that judges should put the Constitution in its most attractive light, by identifying the moral principle or theory that makes the best sense of it. Dworkin urges that judges should be moral readers in the sense that they ought to be generating a morally appealing interpretation of the constitutional text. Inevitably, what counts as a morally appealing interpretation is a product of the active judgments of the interpreter.

Epstein is a moral reader. He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation. Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one. Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires. Of course other people think differently. There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of “restoring” the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.

Like other moral readings, Epstein’s reading has to be evaluated in terms of both fit and justification. Does it fit with the original document? In some ways it does, but to make a full evaluation we would have to go provision-by-provision, and some of his judgments fit better than others. Most judges want their decisions to fit with precedent as well. Epstein is fully aware that on this count his approach fares poorly, and so he has to answer a genuinely hard question about how to treat precedents with which he disagrees. To his credit, Epstein puts his cards on the table: “In my view, the answer often turns on this simple question: does the original version of the Constitution or its subsequent interpretation do a better job in advancing the ideals of a classical liberal constitution?”

Would our constitutional order be better if judges insisted on moving the nation in the direction of laissez-faire? Would Americans be freer? Would our lives be better? Epstein thinks so. But philosophers and economists have a lot to say on those questions, and there is no consensus, to say the least, that Epstein is right. If we do not accept the libertarian creed (or at least his distinctive version of it), we will emphatically reject his particular moral reading. And even if we did accept that creed, we would have to ask whether federal judges, with their limited place in our constitutional order, should insist on it. Consider in this regard the cautionary words of Oliver Wendell Holmes Jr.: “If my fellow citizens want to go to Hell I will help them. It’s my job.”

Epstein has written a passionate, learned, and committed book. But he is asking his fellow citizens, and the fallible human beings who populate the federal judiciary, to jettison many decades of constitutional law on the basis of a general theory that the Constitution does not explicitly encode and that the nation has long rejected. Epstein is right to say that in some contexts, a movement toward what he calls “classical liberalism” would be in the national interest. But a judicially engineered constitutional revolution is not what America needs now.

13 Apr 2011

Government By Regulation and Waiver

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Richard Epstein, in a very important paper published in the Spring issue of National Affairs, discusses the many ways in which the modern administrative state has by-passed a uniform rule of law in favor of permitting regulatory bodies to negotiate a variety of terms and concessions in areas affecting broadcast licensing, labor relations, prescription drug licensing, health care, and so on.

Epstein cites, as a particularly striking example, the kind of negotiations which have become customary in the case of building permits.

These days, to begin any new building project, every developer must obtain a sheaf of permits that go far beyond the relatively mundane functions of avoiding falling bricks or aligning curb cuts to secure entryways for indoor parking. Indeed, today’s new norm calls for exhaustive hearings before planning commissions and community boards; these investigations are intended to probe the size of a project, its exterior design, the number and type of apartment units, access for the disabled, the amount of affordable housing (with complex subsidies from both the government and the developer), project financing (with government guarantees), proper hiring practices (with appropriate set-asides for women and minority workers), and multiple inspections for just about everything.

Yet just as all these requirements can be imposed, they can also be waived. The waivers, though, often come at a price — or, more accurately, a land-use exaction. For instance, a cash-strapped local government may be willing to waive the requirement that a developer set aside a certain percentage of apartment units to rent at below-market rates to the poor. The catch, however, is that the developer must agree to provide funding to build or refurbish a public school, a public park, or a nearby train station. The developer almost inevitably yields to the exaction, because he knows that, if he does not, he faces prolonged resistance and constrictive red tape from the government — obstacles that could eventually sink his project. But the requests for exactions may come from many varied groups with different expectations and demands. Parents may want a new school or park, commuters may want a new train station, cyclists may want new bike lanes, the arts community a new public performance space, homeless advocates a new shelter, and so on. It may not be possible for the government or the developer to satisfy all of the groups simultaneously — and the attempt to do so can tie up development for years, or cause projects to be scrapped altogether. This phenomenon drives up the number of project failures, which in turn shrinks the supply of housing, which then drives up housing costs and puts even greater pressure on both the developers and the regulators.

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