Book Reviews <<<
HOW PROGRESSIVES REWROTE THE CONSTITUTION REVIEW BY CHARLES R. DRUMMOND IV RICHARD A. EPSTEIN. How Progressives Rewrote the Constitution. Washington, D.C.: Cato Institute. 2006. Pp.156. $15.96.
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or all the bravado of the title, this book is remarkably staid. That is not to say that it isn’t polemical (and controversial), but the language in which University of Chicago Professor Richard Epstein argues his position is elevated and restrained. Although Epstein’s new book How Progressives Rewrote the Constitution is erudite and well argued, most readers will be genuinely appalled by what they read. Epstein, however, is comfortable in his role as a gadfly; he has been attacking what he describes as the “orthodox reading” of the Constitution for decades. For readers unfamiliar with his unpopular opinions, there is no attempt by Epstein to sugarcoat his beliefs. Only four pages into the preface of How Progressives Rewrote the Constitution, he boldly affirms that he stands by most of the positions he took in 1985 with his famous book Takings. Both then and now Epstein believes that “minimum wage laws, antidiscrimination laws (in competitive markets only), collective bargaining laws, and Social Security requirements” are “unconstitutional.”
Constitution. The overall contours of Epstein’s account seem fairly certain to me. The New Deal Court did radically break from the jurisprudence of the Old Court (although this does not mean that “progressives rewrote the Constitution”). But the real heart of this book is not a narrative of the transformation of the Court, it is Epstein’s reaction to this transformation. It seems as if Epstein’s quarrel with the progressive shift in the Court is based upon two principles. First, the New Deal Court broke with the spirit of the Constitution. Second, the New Deal Court broke with economic liberalism. To Epstein, the two are inextricably linked. While it is easy to dismiss Epstein’s plea that the U.S. rid itself of any trappings of a managed economy, there is something beautiful (if perhaps misguided) about Epstein’s vision, beyond the apparent ugliness of his rejection of many of the laws that are most commonly deemed humane and necessary. As Epstein sees it, his goal as not so much an “unregulated America” but as an entirely new legal order. In fact, the U.S. Constitution is only one part of Epstein’s vision, which is actually a comprehensive worldview in which “competition and free trade” are the governing concepts of “all areas of human endeavor.” Using the lens of Adam Smith’s “invisible hand,” Epstein pushes for “classical liberal” principles of competition in all areas of life. But Epstein makes his own conception of the “classical liberal synthesis” accomplish a bit too much for him. His contention “that the Constitution is unambiguously in the classical liberal camp” is true, for the most part, but it ignores the diversity of economic theories held by the Framers and by others in the early Republic. Mercantilism was not yet dead, and many of the Founding Fathers could scarcely be called laissez-faire. Epstein is perfectly correct in saying that the “watchwords” useful in viewing the “American constitutional experience” through the prism of the “classical liberal” tradition are “limited government, private property, and freedom of conduct.” But the “classical liberal” tradition can only get you so far. Invoking the general “procompetitive bias” of the Constitution does not suffice for analysis and does not justify a reading of liberal economic theory into our nation’s laws. The Constitution is not just an elaborate footnote to The Wealth of Nations, and Constitutional principles need not always be in accord with “classical liberal” economic theory.
This is a book, however, not solely about Epstein’s beliefs, but also about his understanding of an important era in modern American History: the turn from the economically liberal “Old Court” to the progressive New Deal Court. Epstein would have it that the New Deal Court wrenched the Constitution from its former moorings, moorings put in place at the very beginning of the Republic. The Old Court with its more “nuanced and sensible” line of interpretation let individuals alone in the economic sphere, except in the cases of “tortious harm” and “monopoly.” Then entered FDR onto the scene, with his “Court-packing scheme” in which he sought to expand the conservative Old Court by appointing six new, presumably progressive, members. This “switch in time that saved nine,” ushered in a new progressive paradigm. Cowed by an overweening executive trying to shove through his own program, i.e. the New Deal, the Court donned the progressive mantle of government regulation of nearly everything—prices, the relations between employers and employees, and industries in general. The restraint of the Old Court, and perhaps even the age of chivalry, for that matter, quickly came to an end. So, in a nutshell, is the main argument of Epstein’s book. Progressives, with all of the best intentions, “disagree[d] with the text of the Constitution,” and implemented new avenues of inter- Charles R. Drummond IV ’09 is a History concentrator in Adams pretation that transformed “the tenor and purpose of” the House. 68
Harvard College Law Journal