Cato Institute adjunct scholar Richard A. Epstein looks at the Constitution in a quest for limited government.
It should be clear, then, that both the progressives and conservatives work on models that are too divorced from constitutional text, constitutional theory, and private law. 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’s 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 decries Lochner 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 means, “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 and 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 state power. Judicial usurpation is, to be sure, one sin. But to read these broad protections narrowly is the inverse mistake of judicial abnegation.
The bottom line here is that the same mindset that works for individual rights works for understanding the structural constitution. In both areas the result of energetic government, or what Clark Neily calls “judicial engagement,” pays handsome and enduring public dividends. The principles embodied in the classical liberal constitution are not those that work only in this or that era. They are principles for the ages, which is why they deserve to be embedded in constitutional jurisprudence. Yet all too often, these basic principles are rejected for ephemeral concerns that undermine our constitutional well-being.
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