Both
progressives and conservatives fundamentally misunderstand our most important
founding document.
by Richard
A. Epstein
This
coming week, Harvard University Press will publish my new book, The Classical Liberal Constitution: The Uncertain Quest
for Limited Government. This 700-page volume took me over seven years
to complete, and it offers a distinctive third approach to constitutional law
that helps explain why the current Supreme Court’s conceptual framework is in a
state of serious intellectual disrepair on many, but by no means all, issues.
Conventional
wisdom divides constitutional judges and scholars into two warring camps:
conservative and progressive. The classical liberal offers a third point of
view, by explaining how our Constitution secures a system of strong property
rights and limited government. It does so by rejecting the deep antitheoretical
strand that often guides both conservative and progressive thought, and leads
both groups—for somewhat different reasons—to support a highly deferential, if
misnamed, “rational basis” test to assess the constitutionality of
congressional and legislative action.
The Lochner Syndrome
Conservative
thinkers often start their constitutional analysis with neither text nor
structure, but with their own view of the proper role of the Supreme Court in a
democratic society. In their view, the essential choices about the social and
economic structure properly belong to the political branches of government at
both the federal and state level.
The view
holds that the judiciary should override statutes and executive actions only in
exceptional cases. They think no judge should translate his policy objections
to particular laws into constitutional terms. Thus, in The Tempting of America, Robert Bork
called the Supreme Court’s 1905 decision in Lochner v. New York—which by a five-to-four
vote declared New York’s controversial maximum-hours law unconstitutional—an
“abomination” that “lives in the law as the symbol, indeed the quintessence of
judicial usurpation of power.”
Unlike
conservatives, progressives defend these laws. But their judicial attitude is
driven by the same skepticism about judicial intervention in economic matters.
That is the message of Justice Oliver Wendell Holmes’ famous Lochner dissent: “a
constitution is not intended to embody a particular economic theory, whether of
paternalism and the organic relation of the citizen to the State or of laissez
faire.”
So it is
that two giants at the opposite ends of the political spectrum make the
identical mistake: Neither thinks that it is possible to map onto the U.S.
Constitution a substantive theory of government. Holmes makes that mistake when
he talks about “a constitution” when the proper frame of reference
should be the United States Constitution. Bork decriesLochner as
“judicial usurpation” because he denies that there can be an independent
textual or structural basis for striking down any economic regulation, no
matter how misguided it may be.
What is
perverse about both positions is that a constitution (indeed any constitution)
is adopted precisely to establish some permanent framework in which laws can be
made and validated. An ancient constitution could follow Justinian’s maxim
“quod principi placuit legis vigorem habet,” which states, “that which is
pleasing unto the prince has the force of law.” However, the U.S. Constitution
explicitly rejects this approach by adopting all sorts of measures intended to
diffuse the power of public officials: in part through federalism, in part
through the division of government power into the Congress, the President and
the Courts. These structural protections are augmented by a broad catalogue of
individual rights, which checks both federal and the state power. Judicial
usurpation is, to be sure, one sin. But to read these broad protections
narrowly is the inverse mistake of judicial abnegation.
As applied
to Lochner’s maximum hour law, the legislature should be
required to justify exactly why, in a free society, it has the right to make a
judgment about how many hours individuals should work and under what
conditions. That point may not be absolute, but by the same token, ordinary
liberty does carry with it the presumptive right to choose employment of one’s
choice, with narrow exceptions for military service and jury duty.
Otherwise,
surely under our Constitution, no state could order its citizens to accept
certain jobs against their will. The same principle against governmental
interference with individual liberty also is at work when government seeks to
stop people from working in a job of their own choosing. If A uses force to
prevent B from working for C, he commits the tort of interference with
advantageous relations, and can be enjoined from that behavior. Put government in
the role of A, and it is in exactly the same position.
The Police
Power Exception
Of course,
government prohibits people from engaging in criminal activity and taking
advantage of the helpless. Indeed, both of those long-standing social norms
have become embedded in the police power, under which federal and state
governments may regulate individual activity to protect, as the phrase goes,
“the safety, health, morals and general welfare” of the public at large.
Inclusive as this list may seem, it does not negate key constitutional
guarantees. In particular, the police power rationale does not let government
pass overtly paternalist legislation on the one hand or overtly anticompetitive
legislation (as in Lochner) on the other.
It is here
that the underlying substantive vision matters. Under the classical liberal
constitution, maintaining a free and open market for both capital and labor is
an essential government function, which resonates in the explicit guarantees
with respect to contract, private property, and the freedom of speech and the
press. These apparently disparate guarantees are all linked together by the
common sentiment that the state must show a serious justification before it can
limit their exercise. The class of justifications is not open-ended, and it never includes
the anticompetitive and protectionist legislation that is routinely sustained
based on a supposed need to correct abuses of the market that are unrelated to
duress, fraud, and monopoly.
More
specifically, the proper scope of the police power is tied to the two reasons
that lead people to join a political compact in the first place. The first
reason is to control the use of force and fraud. The second is to allow state
taxation and coercion to facilitate gainful interactions among individuals who
are unable by themselves to create the much needed public goods—including
defending against foreign threats, maintaining domestic order at home, and
providing the common infrastructure of roads and other public
facilities—because of insuperable transaction costs. The simple but powerful
notion that justifies these coercive actions is that all individuals receive
just compensation from the state for their tax dollars in the form of a higher
level of personal security and economic prosperity.
Making
This Work
The
willful suppression of private competition does not come within a country mile
of serving these objectives. Instead, misguided legislation often spends public
dollars to make all private citizens worse off than they would otherwise be,
which is not the case when the sensible enforcement of the antitrust laws
controls cartels and other anticompetitive activities.
It is just
this basic pattern that explains the greatest successes of our constitutional
order. When the justices escape their habitual skepticism about the power of
legal theory, they can work wonders by making those key judgments needed to
implement the classical liberal constitution. When the justices care about
outcomes, they become classical liberals in spite of themselves. Here are two examples.
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