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Richard Epstein: In Defense of the Classical Liberal Constitution

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by Publius
Posted March 10, 2014, 4:14 PM

Richard Epstein summarizes his new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, at the Library of Law and Liberty:

What follows is a short account of the central argument of a long book, of some 700 pages, that seeks to cover the basic outlines of constitutional law in three major areas: interpretation, structure, and individual rights. The theme that unifies these three separate topics is how they all relate to the quest for limited government. That task requires an interpretive method and an institutional design that is strong enough to allow for government rule, but not so powerful that it suffocates the very individuals whose liberty and security it is intended to protect.

In dealing with this central theme, my most distressing observation is that the two modern schools of constitutional interpretation do not address the essential challenge of political theory in this fashion. I therefore spend much of the initial section of the book dissecting the two theories of constitutional interpretation—conservative and progressive—that dominate modern discourse of constitutional law, which in oversimplified fashion are these.

First, the conservative view of judicial restraint stresses unduly the need for the judges to take a back seat on major questions of domestic policy and foreign affairs, leaving it to the Congress and the President to divide the key powers of government between them. As a matter of political outlook, most of the conservatives tend to favor, for example, a broad role for private markets and to acknowledge the desirable features of separation of powers on the one hand and of federalism on the other. But by the same token, they do not think that it is the province of the justices to make the central institutional calls on these vital matters, which they think are properly left to the political branches of the government. In so doing, they make the familiar modern mistake of accepting popular democracy as the ideal of government, rejecting implicitly the more structured form of classical republicanism whose complex checks and balances were introduced to counteract the evils of popular democracy that operated by majority will. . . .

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