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Responding to Classical Liberalism’s Critics
As has been noted here at Ricochet, my former University of Chicago colleague, Cass Sunstein, recently authored a review of my new book, The Classical Liberal Constitution: the Uncertain Quest for Limited Government, in the pages of The New Republic. The review itself is thoughtful, though you’d never know that from the titles chosen by the editors of The New Republic. The print version is headlined “Tea Party Constitutionalism: The Unexamined Dogmas of the Libertarian Right.” Online, it’s even worse: “The Man Who Made Libertarians Wrong About the Constitution: How Richard Epstein’s highly influential, highly politicized scholarship cemented Tea Party dogma.”
The magazine’s hysterics aside, Professor Sunstein’s criticisms still fall short in my view. As I note in my column this week for Defining Ideas at the Hoover Institution:
Sunstein’s review never challenges any of the particular places where I claim that the classical liberal approach is superior to its progressive alternative, as both theories relate to government structure or individual rights. Instead, Sunstein notes that many contemporary thinkers have rejected my basic constitutional orientation. He even invokes the authority of Oliver Wendell Holmes, Jr. to push for popular democracy: “If my fellow citizens want to go to Hell I will help them. It’s my job.” After expressing some sympathy with some of my (unidentified) positions, he concludes emphatically that “a judicially engineered constitutional revolution is not what America needs now.”
The argument is too convenient to work. The general public is pessimistic about the current economic situation, and one progressive gimmick after another has not stemmed the retreat. Indeed, if Holmes were right, then the rights of the “discrete and insular minorities” could be trampled at will, both before and after the epic 1954 Supreme Court decision in Brown v. Board of Education.
The progressive vision is insufficient to govern the nation, both when it comes to structuring a government and when it comes to defending individual rights. As I note in the column, pure libertarianism is as well, which is why the wisest choice is to embrace a classical liberalism that steers a course between anarchy on the one hand and domination on the state by the other. You can read the column in full for a more thorough understanding of my views on the proper equilibrium.
Published in General
You make much of what legl order is most likely to function best. I think this is irrelevant to those for whom the utility of imposing their vision is boundless.
There is also the problem that the foundations were developed by white men who were not environmentally conscious nor used condoms. I think it was Ezra Klein who said “the whole constituion thing thing is like so five minutes ago” or words to that effect. There is a mindset that modernity is insulted by that which sucessfully persists from earlier times. The very success you tout is vaguely offensive to some.
“a judicially engineered constitutional revolution is not what America needs now.”
Isn’t this what the Left has been doing?
Epstein’s approach is enlightening in that his perspective shows how the Constitution’s framework filters down through layers of consequent law to the front lines, to resolve actual, everyday, conflicts faced by individuals. By contrast, I tend to think ideologically and recoil at the general trend of law and regulation. I am not sure how I come out on this. It certainly requires one to take the long view and I am decidedly pessimistic when it comes to that.
Practically and economically, Epstein’s view is clearly superior to Sunstein’s progressivism. Unfortunately, the classical liberal view was rejected in the early 20th century and has sunk deep roots into what is called the rule of law with central planning and a “one size fits none” approach. As much as I approve the idea of a judicially-led Constitutional revolution, I think it extremely unlikely. More likely, in my view, is revolution at the front lines – where the law meets the individual – through mass non-cooperation. This may be ideological, but more likely will arise from economic inability to comply. If anything is non-sustainable, it it progressive economics: unlimited demand, shrinking, overtaxed, base of productivity to support it.
civil, I can understand your last paragraph. It is happening to us. We used to have health insurance. If we buy it, and are hospitalized, our deductible is so large combined with a 40% cost of care, we will be making payments whether we have insurance or not, so we are gambling for the time being, both of us having a history of good health, we can squeak by for a while.
I don’t think we are the only ones that find ourselves in this position. I knew of a few people with large driver responsiblity fees that were driving very carefully on suspended licenses because they couldn’t pay the fines.
I now understand my hesitancy regarding Epstein’s concept that a classical liberal reading of the Constitution results in more win-win legal outcomes when it comes to tort and contract litigation. He analyzes not only outcomes but transaction costs and this is sensible when it come to disputes between citizens.
What he does not mention, however, is the case – which is increasingly frequent – when the plaintiff is the state (civil or criminal). Given the current all-pervasive nature of law and regulation, it is disputes between citizens and the state and not fellow citizens, which have the most import for the ordinary citizen. Often, more than money is at stake. Infraction of the state’s rules – unknowable and counter-intuitive – can easily result in significant loss of property and other rights.
The result, then, of the progressive Constitution, is that the state first creates rules which inevitably result in conflict with citizens. At the same time, it grants itself monopoly power to decide those conflicts in its own favor. If Epstein has not pointed this out as the horror which it is under a progressive reading, I am surprised. If he has, I have not seen it.