Richard Epstein has published a massive scholarly tome laying out the case for enforcing the Constitution in a way that recognizes its foundation in the principles of individual rights and limited government. There is a lot to be said in favor of this approach, not least of which is the outlook of its opponents.
Take, for example, Cass Sunstein’s review of Epstein’s book in The New Republic.
If you were looking for an authoritative rebuttal of Epstein, this would be the place to go. Sunstein is a leading legal theorist on the left, a professor at prestigious law schools—including Epstein’s own school, the University of Chicago—and someone who has put his self-described paternalistic theories into practice as an official in the Obama administration.
Yet you won’t really get a rebuttal. What you get is mostly a bunch of snide insinuations that Epstein isn’t really qualified to offer opinions on the Constitution, or that he is, well, a bit nutty. So we’re told three times that Epstein’s views are considered “eccentric” or “unusual,” and we’re told five times, by my count, that Epstein isn’t really a constitutional law professor, because he hasn’t taught the right mix of courses and is instead steeped in the study of the English common law. (You know who else was steeped in the study of the English common law? The guys who wrote the Constitution.)
Yet when it comes to sharing his own superior expertise on the Constitution and the views of the Founding Fathers, Sunstein glides away from the central issues. After a summary of Epstein’s arguments on how the Constitution relates to current controversies, Sunstein punts.
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.
His approach is not to answer Richard Epstein but to declare him a kook outside the mainstream who is therefore safely ignored. This argument through social snubbing is consistent with Sunstein’s wider theme: that the meaning of the Constitution really ought to be decided through social consensus. That’s why Sunstein doesn’t dwell on all those questions about what the Founders really thought; in his view, it doesn’t matter. His point is that the Constitution is always reshaped to fit our subjective preferences.
Epstein…objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation. 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.
So everyone is just rewriting the Constitution to fit their own 21st-century politics, the constitutionalists included.
This explains why Sunstein exaggerates Epstein’s role as the man whose “highly politicized scholarship cemented Tea Party dogma.” It’s something he never demonstrates in his review. He writes that, “if Tea Party constitutionalism has academic roots, or a canonical set of texts, they consist of Epstein’s writings” No, the canonical text for Tea Party constitutionalism is the Constitution. Epstein’s contributions are valuable, but we didn’t need him to convince us that, as Sunstein puts it “our Constitution is libertarian, in the sense that it sharply restricts the power of the national government.” We got that impression pretty clearly from the Founding Fathers themselves. After all, Jefferson said “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution,” not “let no more be heard of confidence in man, but ‘nudge’ him to do what experts say is for his own good.” The Founders rebuilt an entire government from scratch. If they had wanted us to be a welfare state, we would have been a welfare state in 1790.
As for the idea that, on these principles, the massive 20th-century expansion of government is unconstitutional—isn’t that what fueled the fight between Franklin Roosevelt and the Supreme Court in the 1930s, inspiring FDR’s court-packing scheme to bypass the “nine old men” on the bench? That isn’t Epstein’s invention, either.
In effect, Sunstein wants to act as if the “libertarian” or laissez-faire interpretation of the Constitution were a modern invention rather than the rediscovery of very old, very well established constitutional history. In doing so, Sunstein is also covering up a little bit of the left’s history on the Constitution. Jonah Goldberg has been emphasizing recently how those on the left “cheat by denying their ideological motivation—even to themselves.” One of the things they deny is that they don’t like the Constitution and want to be rid of it. Instead of admitting that, they switched to insisting that they’re in favor of the Constitution, but its interpretation is malleable and can be whatever they want it to be. In Sunstein’s case, he has gone tactically reactionary: since the prevailing 20th-century interpretation lets the left do pretty much whatever they want, let’s stick with that. Which amounts to the same thing.
If the left doesn’t like the Constitution, they can change it. It specifically provides a method to do so. But the rules for amending the Constitution require them to get, not just a temporary, fifty-plus-one legislative majority, but a very broad consensus, the kind of consensus the Founders had circa 1789. Which means that an iron-clad consensus from the faculty of Harvard Law School will get you precisely nowhere. You can see how that might be a problem, so the left’s preferred method for changing the constitution is through a method that the Harvard Law School can influence: the views of a narrow band of elite law-school scholars.
Now you can see why Sunstein spends so much time trying to make Epstein seem out of the loop, eccentric, uncool. He’s not part of the consensus of elite law professors whose job is to tell us what the constitution means at the current moment.
That’s why the problem is much deeper than a debate over our Constitution. What leftists like Sunstein don’t get is constitutionalism, the belief in constitutionally limited government itself. Those limits are designs for the protection of our freedom against the narrow passions or political manias of the day—and the 20th century certainly demonstrated how maniacal the manias can become.
But you can see how some would have a vested ideological interest in rejecting the idea that government must be restrained by fundamental laws which cannot be changed by temporary majorities—or re-interpreted by experts.