The Classical Liberal Constitution: The Uncertain Quest for Limited Government.

AuthorEly, James W., Jr.
PositionBook review

The Classical Liberal Constitution: The Uncertain Quest for Limited Government

By Richard A. Epstein

Cambridge, Mass.: Harvard University Press, 2014.

Pp. xv, 684. $49.95 cloth.

In The Classical Liberal Constitution, Richard A. Epstein, a prolific and erudite scholar, takes on the challenging task of defending the classical liberal understanding of the Constitution against the ascendant progressive ideology. He posits that classical liberalism rests on a dedication to private property and limited government and maintains that "the Constitution was intended to embody the theory of classical liberal thought" (p. 582). As a consequence, the Constitution should be construed to reflect the precepts of classical liberalism. For example, Epstein rightly insists that the Constitution is concerned with negative liberty--that is, safeguarding individuals from governmental abuse. He emphasizes that this document places on government no affirmative duties to provide benefits. Yet he also goes a step further. Rejecting modern constitutional thought, he argues that classical liberal theory also limits the use of tax revenue and prevents legislative programs to redistribute wealth.

Under the influence of the Progressive movement, notions of the proper role of government began to shift in the early twentieth century (see James W. Ely Jr., "The Progressive Era Assault on Individualism and Property Rights," Social Philosophy and Policy 29 [2012]: 255-82). This transformation was brought to fruition following the political triumph of the New Deal in the 1930s. In the so-called constitutional revolution of 1937, the Supreme Court largely abandoned the classical liberal constitutional order.

In contrast to his endorsement of classical liberalism, Epstein takes steady aim at the currently dominant progressive mindset and New' Deal jurisprudence. Progressives saw' government as a positive force, believed that individual rights were created by government, not by natural law', and had boundless faith in governance by supposedly impartial experts. It followed that limitations on governmental [tower with respect to "both structural issues and property rights were perceived as pointless roadblocks that the modern technological state should overcome through a greater concentration and use of government power at all levels" (p. 7). Expansive government authority under the rubric of the police power, Epstein charges, has largely eviscerated the constitutional guarantees...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT