I had the pleasure of reading successive versions of the manuscript for Richard Epstein‘s little gem of a book, How Progressives Rewrote the Constitution, and yesterday I saw the fireworks when it was officially unveiled. Critical comments were provided by Professor Michael Seidman of the Georgetown University Law Center. (You can watch or hear the event here. Epstein’s Wall Street Journal smackdown of the administration’s grab for powers not authorized by the Constitution is available here. His interview on CNN on the issue is available here.)
How Progressives Rewrote the Constitution makes for a great short read; it’s an intelligent and insightful tour through American constitutional history from the Constitutional Convention to last year’s terrible Kelo decision, in which the Supreme Court put their stamp of approval on the coercive transfer of property from disfavored private owners to favored private owners, despite the Constitution’s clear limitation of takings to “public use.” Epstein both demonstrates what has gone wrong and offers a coherent vision of constitutionally limited government that is attractive and even stirring.
Unsurprisingly for anyone who is acquainted with his work, Epstein offers both a historical treatment of constitutional law and a philosophical and legal/interpretative framework for how to read and apply the Constitution. As he notes of the “Progressives,”
They saw in constitutional interpretation the opportunity to rewrite a Constitution that showed at every turn the influence of John Locke and James Madison into a different Constitution, which reflected the wisdom of the leading intellectual reformers of their own time.
The Constitution written by the framers and amended over the years was replaced, not simply amended, by people motivated by a robust faith in the power of coercion to do good. As Epstein shows, the Progressive vision was based on a set of poorly supported social theories that led them to promote “the deadly combination of a narrow conception of individual liberty and a broad conception of government police power.” How Progressives Rewrote the Constitution offers an elegant and short introduction to American constitutional law (with clear explanations of such concepts as strict scrutiny, rational basis, police power, and so on) and a vigorous defense of the constitutional system of limited government.
If you like this book (and I’m sure you will), you might also want to get another book from the Cato Institute (co-published with Princeton University Press), Randy Barnett’s Restoring the Lost Constitution. (You can order How Progressives Rewrote the Constitution and Restoring the Lost Constitution by calling 800-767-1241 or by visiting www.catostore.org.)
All kudos to and nothing bad about Epstein and Barnett, but the truly sad thing is that there’s nothing really brilliant about what they have to say. They are very smart and learned men presenting something that’s rather obvious. It is a sad statement about the governing classes of our time that this has to be so. The progressive interpretation of the constitution did not just come into being one day. It took the deliberate misreading and the disingenuous lawyering of many, many people.
The same is true, of course, for other big government leftist (and currently, big government conservative) projects. You don’t have to be a rocket scientist to understand that burdening your children with debt for consumption is a bad idea. You don’t have to be a rocket scientist to understand that you have to teach people restraint so that they can take care of themselves, instead of becoming a burden on their community. Yet all of these very simple ideas are buried beneath the drivel that pass for political and social thought among the socalled elites. I know, because I’m part of these ‘debates’.
So, kudos again to Epstein and Barnett. But I doubt it will help. Too bad, so sad.
I was very fortunate, as a law student, to attend IJ’s summer conference back in 1994 (or was it 1993). Randy Barnett’s presentation on the 9th Amendment and unenumerated rights was compelling, easily among the most memorable and influential conference lectures that I’ve had the privilege to attend.
That, and interning at IJ, was an other-worldly counterweight to the daily dose of unreality that is law skool. Sometimes it feels like everything after 300 U.S. 1 is wrong. But how do you undo it now? It’s not that easy. Our entire form of government is based on some of these screwy precedents. The band-aid has to be ripped off slowly. It is depressing to see Scalia joining in travesties like Raich. The “right” has apparently decided to be as opportunistic as the left in imposing its outcomes through dubious constitutional interpretations….
Epstein would be my pick for Supreme Court Justice (your colleague Roger Pilon would probably be second).