Classical Liberal Constitution: Part III, Methodology

In Part III, Panelists respond to Professor Epstein's take on the Methodology.  

Barry Friedman says that Epstein doesn't have a Constitutional Methodology . . . But this could be a good thing.  Friedman also says that Epstein's methodology was seemingly that of a Popular Constitutionalist and joked at one point that he sometimes thought he was reading "Will of the People: How Public Opinion Has Influences the Supreme Court and Shaped the Meaning of the Constitution" (Friedman's own book). 

Barry Friedman, Gary Lawson, Burt Neuborne (from left to right)

Barry Friedman, Gary Lawson, Burt Neuborne (from left to right)

Gary Lawson revises an earlier conception of the Constitution - the Constitution as an instruction manual - and recharacterizes the Constitution as essentially a power of attorney. 

Michael Rappaport delivers his remarks

Michael Rappaport delivers his remarks

Michael Rappaport says "I agree with Professor Epstein 90% of the time on policy issues, but I do not agree with him on the original meaning of the Constitution." According to Rappaport, Epstein's view is one of originalism, but one that relies too much on Classical Liberalism.

Nick Rosenkranz argues the book is in a hurry to jump from the text of constitution to classical liberal theory in an analytical move similar to a living constitutionalist.  However, Rosenkranz does think Epstein's view of Classical Liberalism is close to what the framers envisioned. 

Nick Rosenkranz

Nick Rosenkranz

Adam Samaha addresses Epstein's take on judicial review. Professor Samaha says that judges have not been very classically liberal in 70 or 80 years. He says that maybe you would want judges to guard against new laws, but that sort of misfires and doesn't accomplish a current goal, nor is it a form of interpretation.  Professor Samaha concludes by arguing that maybe it's a bad idea to try to conceive a  classical liberal constitution, that it's too pie in the sky. And that one of the main reasons that Classical Liberalism has failed as a methodological approach to the constitution is an implementation failure. 

Epstein responds to all of these charges at the end of the Conference.