In Defense of the Classical Liberal Constitution

Richard Epstein

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.

Conservative, Progressive, and Classical Liberal

Classical liberal constitution.jpg

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.

That same logic of judicial restraint leads conservative justices to tolerate in large measure extensive forms of regulation of property and contract at both the state and national level, yielding vast scope to the government in the overall control of the economy, even with respect to policies that these justices either reject or doubt on substantive grounds. Again the principle of judicial restraint shapes their institutional role.

To the progressive or liberal justices, the basic challenge takes somewhat different form. By and large they think that separation of powers is a recipe for paralysis in a complex economy that cries out for an activist state. They also believe that the traditional common law rules that governed the law of property, contract and tort have played themselves out in modern times. In their place, they follow the early progressive vision calling for a strong central government to face the challenges of modern times. That program in turn has two separate parts. The first relies on extensive public participation in the deliberative process to set the broad national course on general economic and social affairs. The second looks to group of neutral and learned experts to translate this political consensus into a set of workable rules that can be systematically applied by modern administrative agencies that often operate with substantial independence from judicial, and often, political oversight.

On many particular areas, conservative and progressive thinkers disagree with each other. But the central truth of the modern political economy is that both for different reasons think that the economic and social choices in the United States should be left to democratic and administrative processes. The classical liberal position thus takes issue with both of these points of view, and insists that the great genius of the American Constitution lies in its appeal to a very different political tradition, that counts Locke, Montesquieu, Hume, and Madison as the serious intellectual forbearers of the Constitution.

The Originalist Enterprise—Reconceived

On this general view, the central challenge is to forge sensible institutions that divide and fragment power so that it cannot become the source of political domination or oppression. In dealing with this issue, the entire interpretative structure of the Constitution is critical because if the Framers could not provide clear directives as to the structure of government and the protection of individual rights, the great constitutional crusade for limited government will be stopped in its tracks. To the linguistic skeptic, the endless confusion implicit in key constitutional commands leads to judicial deference to the political branches that then engage in nonstop political horse-swapping devoid of constitutional principle and judicial oversight.

The best elements of constitutional originalism are keenly aware of the dangers associated with the view that any word can have whatever meaning that the justices, the legislators or the president decide to give it. They know that without some check on this exercise, the effort to find a principled basis for limited government will necessarily fail. There is much to be said in favor of this view, so that it become in my view utterly untenable to claim, for example, that the term “commerce” is broad enough to encompass agriculture, mining and manufacture, when in ordinary English the term is used in opposition to these three kinds of activities that our Constitution designedly left to the control of the States. In similar fashion, it is not possible to read the term “private property” as though it encompasses only the right or exclusive possession to land, animals or chattels, when the term has always been used in both common and Roman law —the Framers were far from ignorant to the classical tradition—to cover the rights of use, within the boundaries of nuisance law, and the right of disposition whether by sale, lease, mortgage or gift.

The constant effort to expand the meaning of commerce and restrict the meaning of private property are key components of the Progressive agenda, by combining an expansion of federal power with a contraction of the domain of protected private rights in the second. A faithful originalism is on solid ground when it resists the constant effort to redesign terms so as to turn a classical liberal constitution into a modern progressive one, without going through the process of formal amendment. More generally, there is no necessary connection between the conservative insistence on judicial restraint and classical liberal theory. A Constitution drafted by defenders of limited government should not by interpretation be converted into an open-ended charter of government power.

If the originalists are on sound ground on this issue, they are on far weaker ground if they think that the close examination of the written text, standing alone, is sufficient to unlock the meaning of general constitutional provisions. It is at this point, that the defenders of judicial restraint show insufficient respect to the well-developed interpretive tradition that treats any constitutional text as creating the initial presumption whose gaps are filled in by a conceptual analysis that links the basic textual provisions to the larger constitutional purposes of limited government. These ends are, of course, the control of force and fraud, the common defense, and the provision of public goods, such as roads and other infrastructure, whose creation was contemplated under the Constitution.

It is therefore necessary to recognize that virtually every constitutional text leaves unstated three critical questions for its implementation; anticircumvention rules, justifications, and remedial choices..

First, constitutional limitations are intended to prevent abuse by the political bodies. It is therefore necessary to read the text broadly enough to prevent government from enacting artful measures to circumvent the constitutional limitations on its powers. If the states cannot impose taxes on imports, they cannot be allowed to impose special taxes on importers that could achieve the same end. If the government is not allowed to regulate speech, it cannot be allowed to subject it to heavy taxation. If the government cannot take property, it cannot burn it to the ground, and leave the rubble in the possession of its former owners.

By the same token, it is critical to recognize that in the constitution (as in the ordinary law of contract and tort) the basic rules take the form of presumptions not absolute, allowing the government to justify its actions in particular cases. People should prima facie keep their promises, but not when induced by force or fraud. Individuals should not use force against others, except in cases of self-defense. One of the great vices of modern constitutional law is that the justices and the commentators often see constitutional law as a self-contained body of rules and principles divorced from the rules of private law that explain how ordinary people interact with one another.

This explicit linkage between public and private law brings two critical propositions into view. The first is that the same principles of interpretation have to be brought to bear on the great constitutional guarantees, which now become presumptions not absolutes. Historically, this was done by the articulation of systematic rules that governed the police power, which becomes the main axis along which constitutional doctrine develops on all matters of structural constraint and individual rights, even though those two words are not found anywhere in the Constitution.

The second point is that it should be possible to give principled content to the scope and function of the police power. The standard classical liberal formulation of this doctrine spoke of the need to protect the “safety, health, morals, and general welfare” of the population. Broad as these terms were meant to be, they never gave the state the general power to pass “labor laws,” which were rejected for their excessive paternalism or for their eagerness to treat competitive harm as though it were the type of wrong that the government was in a position to prevent.

The question here is how to choose and defend one consistent interpretation. All too often, the recognition that the constitutional text has some play in the joints is often taken as creating “a living constitution”, which lets the Supreme Court fashion exceptions to the original constitutional norms in ways that reflect our modern sensibilities, so that comprehensive regulation of the economy or the use of real property may properly protect against competitive harms on the one hand, or the loss of views on the other.

Unfortunately, the living constitution approach misunderstands how constitutional justifications should be fashioned. The standard exceptions in the private law are in essential outline the same today as they were in ancient Rome and the early common law. Such notions of assumption of risk and self–which lie at the root of the police power are not new conceptions introduced on an ad hoc basis. What could turn out to be novel, of course, are the types of actions that constitute the threat or use of force.

Yet matters belong in context. The ability of the government to control cyberfraud and cybertrespass should be unquestioned. In contrast, the ability of government to suppress truthful speech or to license forced entry onto the land of others (which is allowed to labor organizations under modern law) cannot be read into any principled reading of the police power. Similarly the constant effort to tell people whom they must deal with under either the National Labor Relations Act or the Civil Rights Law represent a major expansion from the earlier police power jurisprudence, which concentrated in licensing and preventing actions, like the use of fireworks that could cause public nuisances.

Third, there is nothing in the Constitution that states the remedies that should be applied in the event of a constitutional violation by the government. It is therefore necessary to decide whether specific performance should be required, whether the state should be enjoined from certain activity, or whether some measure of damages or compensation should be paid. There are no distinctive constitutional principles that govern these questions. So that the implementation of a coherent remedial structure depends on carrying over to the public context the rules that are used to organize remedies in private disputes. Once again the great difficulty of constitutional interpretation is that the text necessarily poses many critical questions to which it does not necessarily supply explicit answers.

Changing Times

It should not be supposed that a Constitution that hews to these principles is unable to respond to serious modern challenges. The classical liberal judges of the “old court” that operated roughly speaking between the end of the Civil War and the great constitutional transformation of 1936-1937 was able to deal with the major issues that a narrow libertarian theory cannot. The imposition of taxes, the provision of public infrastructure, the use of the condemnation power, and the regulation of monopoly are all standard exercises of government power that are inconsistent with strong libertarian theory, but which are explicitly incorporated into the Constitution—which is why this book is called “The Classical Liberal Constitution” and not The Libertarian Constitution.

What is characteristic of most of the judicial decisions of this period was their willingness to face up to the greatest challenge of their time. The general issue of rate regulation preoccupied the Supreme Court during this period, and the justices (often unanimously) worked long and hard to prevent the accumulation of monopoly power on the one hand, without committing the equally great sin of confiscating private wealth under the guise of regulation. It was the New Deal Court, with its great attachment to state-sponsored monopolies that abandoned the old system so that regulation now became the device to prop up monopoly and not to limit it. Similarly in the area of antitrust, the classical liberal judges were relentless in their pursuit of cartel and other monopoly arrangements, but were careful not to convert the antitrust laws into tools for creating and protecting monopoly power, a task that the progressive justices all too eagerly embraced. Similarly, the classical liberal justices understood the need for taxation, but were equally aware that it was essential to put limits on the structure and objects of taxation lest it become a device whereby governments could create huge transfer programs among states and among individuals that has unleashed a veritable deluge of special interest legislation today. And it was the classical liberal justices who sought for the most part to curb the use of state regulatory power as it applied to economic and land use regulation.

In making this defense of the classical liberal constitution, it is important to recognize the imperfections of a doctrine that tolerated slavery at the outset of the nation and fostered various forms of institutionalized segregation after the Civil War. Needless to say these political compromises are totally at war with classical liberal theory. Similarly, many justices before modern times used the “morals: head of the police power to expand government control over personal conduct, particularly on matters of marriage and sex of which the most egregious example is not the contemporary opposition to gay marriage, but instead remains the systematic suppression of polygamy in the territories, which led to the forfeiture of extensive Mormon holdings to the state.

It is critical, moreover, to note that the basic principles of limited government apply not only to issues of separation of powers, and federalism, but also to such matters as religious freedom and charitable associations that do not have narrow economic ends as their sole objective. Finally, it is critical to note too that there are many areas today where both conservative and progressive justices exhibit a high degree of agreement in ways that fully respect classical liberal principles.

On the structural side, the aggressive use of the “dormant commerce” clause has served to protect national markets against state balkanization even without explicit textual warrant. In my view these deviations from original intention should be respected insofar as they satisfy two conditions. First, they are by long usage embedded into the national culture, and second, they are consistent with classical liberal principles. It is this dual interplay that makes so much of constitutional interpretation difficult.

Similarly on the individual liberty side, the great success of the First Amendment is that in most ways (except for the Progressive dalliance with campaign finance regulation), the text is interpreted just as the classical liberal would have it. Speech is read broadly to avoid the risk of government circumvention. The police power justifications deal with the control of force (threats of assault or violence), fraud and defamation, and the application of the antitrust laws to prevent illegal combinations in restraint of trade. But simple public dislike of an offensive position is never justification for state power. Finally, the use of remedies is carefully guarded to avoid, for example, injunctive relief in most defamation and invasion of privacy cases, but not for the protection of business trade secrets from public disclosures.

Yet by the same token, the great failures of modern time cannot be avoided. The willingness of the Court to let ObamaCare pass constitutional muster represents a three-fold failure. There is no willingness to attack the statute for its massive interference with freedom of contract, for its massive overreaching under the commerce power, and for its disregard of the essential limits on the federal power of taxation. That statute is emblematic of all that is wrong with both the conservative and progressive traditions of constitutional law. Only an explicit embrace adoption of the Classical Liberal Constitution at all levels of government can stop the slide of the United States into long-term stagnation and political discord.