Sunstein: Richard Epstein is Rand Paul’s “Daddy”

May 19th, 2014

Cass Sunstein reviews Richard Epstein’s magnum opus, The Classical Liberal Constitution, in The New Republic. The super-clickbait headline is “The Man Who Made Libertarians Wrong About the Constitution: How Richard Epstein’s highly influential, highly politicized scholarship cemented Tea Party dogma.” The general gist is that Richard is a Torts, Property, and Contracts scholar, no ConLaw scholar takes him seriously, and therefore we should marginalize him.

Most constitutional scholars continue to think that Epstein’s views are eccentric, but his views have had a large influence. … When Epstein comes to constitutional law, he is, in a sense, a stranger in a strange land. 

Epstein’s theories conflate public and private law:

All of Epstein’s particular discussions are instructive, and most of them are provocative. It is tempting to engage them in detail. But the risk of particularized engagement is that it would lose the forest for the trees. The larger point is that Epstein has a general framework, highly libertarian in character, which he deploys to tackle a large array of problems. He used a similar framework in his early writings on private law. The overlap is no coincidence: a certain conception of classical liberalism, a political theory emphasizing individual immunity from government, lies at the heart of both.

The book is one of political theory, not constitutional theory.

Epstein insists that “in no legal system at any time could the question of construction be reduced to a search for original public meaning of terms that are found in the constitutional text.” In a crucial passage, he acknowledges that “a bare text raises more questions than it answers, which makes it imperative to isolate the general theory that animates the textusually the protection of personal autonomy, liberty, and propertyand then construct the defenses that are consistent with that world view.” In his account, it “is only through the use of a general theory” that hard questions can be answered. He objects that a risk with modern originalism is that “it ignores the relationships between text, structure, and basic normative theory.” Recall, too, his suggestion that “the resolution of key interpretive disputes” will, and should, be influenced by “our basic conception of the proper scope of government action.”

But what is the source of the general theory and “our” basic conception? What does it even mean to say that a general theory “animates the text”? The most convenient answer would come from history. Epstein could have produced a very different kind of book, steeped in the political thought of the late eighteenth century. With such a book, he might have tried to demonstrate such “animation” by carefully linking a theory of the “protection of personal autonomy, liberty, and property” to the particular choices made by those who ratified the Constitution. That would be a highly interesting book, but it is not at all clear that it would be a convincing account of the views of the Founding generation.

In any case, Epstein did not write it. He is much closer to being an Anglo-American political theorist than an American constitutional historian.

Here, I think Sunstein hits closest to home.

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. …

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. 

I had similar thoughts about Richard’s book.

And, oh, by the way, the Tea Party’s entire view of constitutional law is because of Richard Epstein.

 Epstein is far too independent-minded to lead or follow any ideological movement, but if Tea Party constitutionalism has academic roots, or a canonical set of texts, they consist of Epstein’s writings. More than anyone else, he has elaborated the view that our Constitution is libertarian, in the sense that it sharply restricts the power of the national government, and against both the nation and the states, creates strong rights-based protections of private property and freedom of contract.

And Sunstein nudges the Paul family tree:

Everyone knows who Rand Paul’s father is, but in an intellectual sense it is Richard Epstein who is his daddy.

At some FedSoc convention, someone joked that Richard Epstein was the love child of Ayn Rand and Jerry Lewis.

There are also gratuitous shots at Judge Doug Ginsburg, Judge Janice Rogers Brown, and the Cato Supreme Court review.

That view hardly commands a consensus, but it is not limited to the law schools. In a speech delivered in several places and ultimately published in the Cato Supreme Court Review, a highly respected judge, Douglas Ginsburg of the United States Court of Appeals for the District of Columbia Circuit, wrote that federal judges were faithful to the Constitution until the 1930s, when “the wheels began to come off.” Among other things, Judge Ginsburg objected that the Court has “blinked away” central provisions of the Bill of Rights, including the Takings Clause, which, he lamented, has been read to provide “no protection against a regulation that deprives the nominal owner of most of the economic value of their property.”

Ginsburg’s colleague, Judge Janis Rogers Brown, has spoken in even stronger terms. She asserts that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality.”

In other words, exactly what you expect from a Sunstein essay.

Though, there is a great vignette of a Posner-Epstein lunch from the UChicago Faculty workshop.

When I joined the faculty of the University of Chicago Law School in 1981, there were two defining figures: Richard Posner and Richard Epstein. Posner was the world’s most important voice in the emerging field of “law and economics.” At the time he believed that courts should “maximize wealth.” Epstein, a defender of personal autonomy with strong libertarian inclinations, was Posner’s most vocal critic. At the University of Chicago Law School lunch table, where the faculty ate four times each week, the two had some fierce struggles. Tempers flared. No one who was there will forget those lunches, which sometimes seemed like a form of combat.

With a convenient shot at Scalia.

Epstein is not an originalist, certainly not in a strict or narrow sense. (Not incidentally, Scalia was also on the University of Chicago Law School faculty in the early 1980s, and he too had strong disagreements with Epstein.)