Richard Epstein and Tea Party Constitutionalism. Two peas. Different pods.
One week ago yesterday, the New Republic published a Cass Sunstein article that reviews Richard Epstein’s latest book The Classical Liberal Constitution: The Uncertain Quest for Limited Government. While I am familiar with some of Epstein’s work, I have not read his latest book. However, my purpose here is not to critique Sunstein’s criticisms of Epstein’s work but rather my purpose is to challenge Sunstein’s claims that Epstein’s legal theories serve as the intellectual framework for Tea Party constitutionalism.
…if Tea Party constitutionalism has academic roots, or a canonical set of texts, they consist of Epstein’s writings. More than anyone else, he has elaborated the view that our Constitution is libertarian, in the sense that it sharply restricts the power of the national government, and against both the nation and the states, creates strong rights-based protections of private property and freedom of contract…
…In many places his discussion is highly technical, but in some important respects—of course not in all—you can take it as a careful and sophisticated guide to Tea Party constitutionalism…
…Everyone knows who Rand Paul’s father is, but in an intellectual sense it is Richard Epstein who is his daddy…
He doesn’t specifically define Tea Party constitutionalism, but I think it’s pretty easy to get a working definition that we can mostly agree upon. The three characteristics I would associate with Tea Party constitutionalism are as follows: strict construction (with one amendment to rule them all), constitutionally limited government and federalism/decentralization. There’s overlap but this is close enough.
Unquestionably, Epstein argues for a libertarian reading of the Constitution. I agree with Sunstein on this point. Also, Epstein’s views overlap with Tea Party constitutionalism in a number of respects, especially with respect to the scope of federal power. However, to consider Epstein as one of the intellectual architects of Tea Party constitutionalism overlooks three important points.
The first point is that Tea Party constitutionalism is rooted in our history. Adherents to this doctrine are more likely to quote from the Declaration of Independence, the Constitution, the notes from the ratification debates, the Federalist Papers, the Kentucky and Virginia Resolutions and the Report of 1800 before they would think about quoting from Takings or How Progressives Rewrote the Constitution. I don’t mean to detract from Epstein’s work, but because of the historical nature of Tea Party constitutionalism, its supporters are more likely to be well versed in the writings of James Madison, Thomas Jefferson, Alexander Hamilton, John Jay, Robert Yates and Luther Martin, to name a few.
Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute…
The second point is that Tea Party constitutionalism is a form of popular constitutionalism that is removed from most of the mainstream legal and constitutional theories debated in legal academia. It’s historically based and presented in a way that is meant to be as accessible to people without law degrees as possible. Epstein’s material is dense and, at times, highly technical, so much so that people may get a bit caught up in his arguments (it’s happened to me). In my opinion, because Tea Party constitutionalism is a very plain if not crude constitutional theory that is stripped to its barest bones, Epstein would not be the best spokesperson.
My third point is that rather than embrace Epstein, Tea Party constitutionalists are likely to reject his view on two key points. For the first reason, I’ll quote Sunstein:
…Epstein is a moral reader. He 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…
As Tea Party constitutionalists are more likely than not to say that a moral reading of the Constitution is most closely associated with methods of constitutional interpretation favored by liberals (i.e. – the living constitution), then assuming that Sunstein’s opinion of Epstein as a moral reader is correct (and I see no reason to disagree), then Epstein’s approach will be rejected by Tea Party constitutionalists simply because they will reject any moral reading. As far as I have been able to tell, there is no historical case (by historical, I mean the ratification era) for a moral reading of the Constitution.
The second reason Tea Party constitutionalists are likely to reject Epstein is because Epstein believes in a “strong” 14th Amendment that provides strong federal protection of liberties against the intrusions from state governments. My opinion is that Tea Party constitutionalists would most likely reject this view, as strong federal interference in the affairs of states conflicts with its overall theme of decentralization. Tea Party constitutionalists are more likely than not to side with Raoul Berger, whose book Government by Judiciary, puts forth the argument that the only purpose of the 14th Amendment was to give constitutional justification for the Civil Rights Act of 1866. Berger completely rejected incorporation of the Bill of Rights and would have rejected Epstein’s views given that he criticized the Supreme Court for meddling in the economic affairs of the states.
A couple of parting thoughts…
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.
Tea Party constitutionalists would reject this by pointing to a number of historical sources, but Sunstein makes a good point. Even if I reject the idea that modern constitutionalism has little if any lineage to the document as originally ratified (more on this in a bit), what history tells me is even if we can go back and determine the meaning of terms like “commerce”, “necessary and proper” and general welfare, the ratification of the Constitution never completely settled the scope of the power under those clauses. Those boundaries of those powers were initially established through the Supreme Court jurisprudence of the Marshall Court, especially in cases like McCullough v Maryland and Gibbons v Ogden, which greatly expanded the scope of the Necessary and Proper and Commerce clauses, respectively.
Also, to the extent that some cite history as the influence for their political principles, it’s not clear that the “recovery of history” is consistent with constitutional meaning. Take for example the modern nullification movement (known as the Tenthers). Without getting into the details of nullification**, the “Tenthers” cite the political principles of the Kentucky and Virginia Resolutions of 1798. The constitutional vision, the constitution as a compact amongst sovereign states, arguably conflicts with the history of the ratification era and how peopled viewed the Constitution, especially its opponents.
I can’t speak to the points Sustein makes about Epstein’s book having not read it, but if he’s looking for an intellectual godfather, he’s got the wrong guy. The first name that pops into my mind is Thomas Jefferson but opinions may vary on that.
To the extent that there is a book that best summarizes Tea Party constitutionalism, I would direct readers to Kevin Gutzman’s The Politically Incorrect Guide to the Constitution. It’s a very accessible book to non-readers and it’s written more with a historical perspective than a legal theory perspective. Professor Gutzman, a libertarian that considers himself a Jeffersonian, lays out the historical case. My views differ from his on a number of points, but, in my opinion, it’s still the most accessible book out there that best summarizes Tea Party constitutionalism in a single very easy-to-read textbook.
** The modern definition is more expansive than the one usually attributed to the 19th Century doctrine advanced by John C. Calhoun. A description can be found here.
Thanks to James Hanley for the second set of eyes.