Lawson on Epstein and “Classical Liberal Construction.”

January 9th, 2014

Gary Lawson has a review of Richard Epstein’s new opus, The Classical Liberal Constitution: The Uncertain Quest for Limited Government. The review focuses on Richard’s theory of constitutional interpretation, which Gary contends is not really interpretation grounded in originalism, but is construction Here is the abstract:

In The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013), Richard Epstein says that he “incorporates but goes beyond” originalist theory by calling for adjudication “in sync with” classical liberal theory political theory, which Professor Epstein claims underlies the Constitution. Without in any way detracting from the numerous virtues of this book, I argue that this is primarily a work of constitutional construction rather than constitutional interpretation. From the standpoint of interpretation, the background rules that best supplement the constitutional text are found in eighteenth-century fiduciary law rather than in classical liberal political theory, though the latter is relevant in many contexts. From the standpoint of adjudication, the Constitution implicitly prescribes a set of default rules, rather than reliance on political theory, to govern in the face of interpretative indeterminacy. Hence, Professor Epstein’s adjudicative scheme cannot be derived from interpretation of the Constitution but must result from constitutional construction.
And from the article:
Yet in barely more than a dozen pages,3 Professor Epstein manages to lay out a rigorous theory of constitutional interpretation, and it is on that aspect of the book that I will focus my attention. That narrow focus should not obscure the importance of the remaining 567 pages of the work, all of which merit careful attention and profound respect and any portion of which would justify a lengthy comment. Professor Epstein contests – or at the very least says that he “incorporates but goes beyond”4 – two of the leading contemporary theories of constitutional interpretation: originalism and living constitutionalism.5 Obviously, neither he nor I think this choice exhausts the range of preferred constitutional methodologies. In particular, pragmatism,6 eclecticism,7 perfectionism,8 and common law constitutionalism9 quickly leap to mind as prominent alternatives. But time and space are scarce resources, and one must choose one’s targets. Because I defend a species of originalism, the merits vel non of living constitutionalism or any methodologies not addressed by Professor Epstein are not pertinent to this Comment. I am fairly confident that Professor Epstein and I would largely agree on the inadequacy, though not necessarily on all of the reasons for the inadequacy, of all of these other modes of interpretation. Instead, the relatively modest, but nonetheless important, disagreement with Professor Epstein on which I want to focus concerns whether originalism can carry all of the necessary interpretative water without a supplementing framework drawn from classical liberal political theory. With one very important qualification, described at the conclusion of this Comment, I think that it can.
Lawson spends 31 pages digesting a dozen from Epstein. That sounds about right. Very interesting ground though to differ on.
I never thought of Richard as an originalist. In fact, his idiosyncratic views on the Heller (that it doesn’t apply in D.C. because it is not a “state”) seem quite distant from originalist thought.