The Presumptions of Classical Liberal Constitutionalism

Richard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported justifications both as to the ends [it] chooses and the means [it] uses to achieve them.” Such a recalibration of constitutional scrutiny, Epstein predicts, would “exert[] a profound,” and highly salutary, “effect on the size of government.” Readers who share Epstein’s normative commitments naturally will find his constitutional vision compelling. But The Classical Liberal Constitution is not merely preaching to the choir; it is also addressed to those of us—constitutional progressives and conservatives alike—who do not necessarily share the author’s definition of individual liberty, faith in unregulated markets, or enthusiasm for limited government. And this large and politically heterogeneous segment of Epstein’s audience will just as naturally greet his constitutional vision with suspicion that Epstein is, to paraphrase Justice Holmes, attempting to engraft upon the Constitution a political and economic theory to which a majority of the country does not subscribe.