How Progressives Rewrote the Constitution.

• Author: Wolf, Michael Allan
• Position: Book review

How Progressives Rewrote The Constitution. By Richard A. Epstein. Washington, D.C.: Cato Institute. 2006. Pp. xiii, 156. $15.95.

INTRODUCTION

The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government. If it may regulate the price of one service, which is not a public service, or the compensation for the use of one kind of property which is not devoted to a public use, why may it not with equal reason regulate the price of all service, and the compensation to be paid for the use of all property? And if so, "Looking Backward" is nearer than a dream.

--Justice David J. Brewer (1)

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, (2) a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. (3) In How Progressives Rewrote the Constitution, Richard Epstein, (4) looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American polity from private to public control, asserting that the "Progressives ... were determined that their vision of the managed economy should take precedence in all areas of life," and that they "and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures." (5)

Epstein, the nation's leading classical liberal legal scholar/lightning rod, (6) has Progressivism and its constitutional legacy in his sights in his latest work. His intent is to show how, during the early decades of the twentieth century, "Progressive" justices on the U.S. Supreme Court began a concerted and ultimately successful attack on traditional views of government power, which to that point had been severely curtailed, and of individual rights, which to that point had been quite expansive. According to Epstein's brief though meandering historical account, (7) the regulatory policies that these revolutionary judges championed--despite apparent conflicts between the policies and important liberty interests--amounted to government-sponsored cartels and monopolies. Looking backward from our day to the dawn of the modern regulatory state, Epstein identifies the Progressive Era as the point at which the nation was led astray from its founding, indubitably classical liberal, principles. His yearning for a return to the ideology and jurisprudence of the "Old Court" is palpable.

This slim volume, comprising a bit more than 150 small pages, is based on the B. Kenneth Simon Lecture in Constitutional Thought that Epstein delivered at the Cato Institute in the fall of 2004, in which he spoke on "the intellectual development of the Progressive movement of which [he] ha[s] long been critical on constitutional, economic, and philosophical grounds" (p. vii). Epstein's design in that lecture, and in How Progressives, is to "offer[] a full defense of the earlier constitutional protection of economic liberties--the right to dispose of one's labor and property as one sees fit--and a limited view of federal power under the Commerce Clause of the United States Constitution." (8) How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. (9) For the rest of us, significant gaps will still remain between, on the one hard, our understanding of the nation's past and of the complex nature of constitutional lawmaking and, on the other, Epstein's version of the nature of twentieth-century reform and Progressive jurisprudence.

How Progressives, like many of the works in the impressive Epstein bibliography, is important not only because of the provocative nature of its arguments, but also because of the wide and ideologically diverse audience that pays attention to this important and seemingly ubiquitous voice in the classical liberal chorus. The book returns the reader to some of the themes Epstein raised in Takings, (10) his influential 1985 work that launched the modern private-property-rights movement, (11) and it follows on the heels of another offering from Cato's closet: Randy Barnett's Restoring the Lost Constitution. (12) Given the current judiciary's keen interest in the framers' intent and skepticism about the powers of the federal government, How Progressives has the potential to be another influential Epstein work, but only if some fundamental flaws are overlooked or excused by the reading audience.

Following a summary of the stated goals and organization of How Progressives, this review, in an attempt to provide a counterbalance for Epstein's visions of the formative period of modern constitutionalism, considers three aspects of the book: First, Epstein's practice, shared by many constitutional law scholars, of starting the "story" of a legal doctrine in the middle, in particular, paying too little attention to the suspect nature of the individual "liberty" jurisprudence fashioned by the Old Court. The second notable aspect is Epstein's effort to place himself at the "moderate" point on the ideological scale. Finally, this review will consider his premature attempt to write "winner's history." Epstein's unorthodox version of the social and economic conditions that gave rise to reform in the first few decades of the twentieth century, like his demonization of "Progressive" legal thought, should not be surprising to those familiar with his earlier writings. Still, despite Epstein's efforts in How Progressives to portray himself as a moderate, this problematic historical foray demonstrates that Epsteinian ideas, like Bellamy's utopian socialist dreams, do not yet hold a place in or near America's ideological center.

1. GIVING HISTORY A TRY

   In the Preface entitled "Why We Must Reopen Closed Debates" (p. vii), Epstein challenges the view, which he attributes to "many, lawyers and laymen alike," that "there seems to be little reason to unearth a set of legal controversies that had sorted themselves out by the middle of the New Deal in favor of expanded government power" (p. viii). Epstein then asks, "[I]f the Progressives remade the Constitution in their own image, so what?" (p. viii). But Epstein cannot resist taking the opportunity to set the historical record straight, in order "to correct what [he] believe[s] to be pervasive misconceptions about the central features of the pre-New Deal constitutional legal order--chiefly, federalism and economic liberties," and to "help inform readers of the ability of these now discarded views to lead us toward sound constitutional government in the years to come" (p. xiii). For these and other (13) reasons, Epstein has decided to dabble in history.

   In the introduction that follows, before addressing the struggle between "Progressives and traditionalists," Epstein turns to "a few preliminaries on constitutional theory"--a nuanced, non-Scalian (14) version of "constitutional textualism," (15) and a short tutorial on "the level of scrutiny the Court should apply in exercising its power of judicial review" (pp. 10-11). Throughout the book, Epstein returns to these two elements in an attempt to convince his reader that our rights are best protected by non-deferential judges who are not hesitant to depart from the exact wording of the constitutional text.

   In the next chapter, "The Classical Liberal Synthesis," Epstein explains that, while classical liberals and pure libertarians both favor "freedom of choice and freedom of contract" (p. 16), there are differences, such as the latter group's intolerance of the state's exercise of taxation and eminent domain powers. Given the absolutist nature of pure libertarianism, Epstein feels comfortable noting in passing "that the Constitution is unambiguously in the classical liberal camp" (p. 16). When the list of possible choices of ideology moves beyond these two kissing cousins, however, ambiguity rears its ugly head. In other words, while it is easy to concede that the Constitution is more classical liberal than libertarian, that does not mean that the document (especially when one includes the Reconstruction amendments) does not also encompass philosophical positions that are more accommodating of the modern regulatory state.

   Epstein then explores how well the "American constitutional experience"--first the justices of the Old Court (a term whose temporal dimension he never nails down, although we know its reign ended in the October 1936 Term), and then, in the following chapter, "The Progressive Era" justices--"stack[s] up" against the classical liberal ideal whose "watchwords are limited government, private property, and freedom of conduct" (p. 19). Most readers will not be surprised to learn that, in both general areas of inquiry--federalism and individual rights (primarily property and contract)--the traditionalists on the late nineteenth and early twentieth century Courts outperformed their left-leaning successors. The traditionalists remained true to the classical liberal principles that supposedly informed the Constitution in cases involving rate regulation, monopolies, and labor regulation. Included in the last category are cases that received very broad condemnation among legal academics until the last few decades: Lochner v. New York, (16) invalidating maximum hours legislation, (17) and three cases upholding "yellow-dog" labor contracts "that required a worker not to be a union member (or not to become one on the union demand) so long as he remained in the employ of the firm." (18) The "Progressives" pulled the Constitution away from its classical liberal moorings in the federalism and individual rights arenas (now...