Tuesday, May 20, 2014

Sunstein on Epstein's Classical Liberal Constitution

Cass Sunstein, writing over at the New Republic, called Richard Epstein's latest book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, "passionate, learned, and committed," "a full-scale and full-throated defense of his unusual [libertarian] vision of the Constitution," and his "magnum opus."  Sunstein also places Epstein at the center of Tea Party constitutionalism, "the man who made libertarians wrong about the Constitution."  "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy."

But Sunstein argues that Epstein is a "stranger in a strange land" in arguing about the Constitution--that he "is steeped not in American constitutional law but in Anglo-American common law."  According to Sunstein, Epstein's views are more moral than doctrinal or historical (and certainly not originalist), and that he's "playing Dworkin's game" of reading the text through a moral lens:

Epstein is a moral reader.  He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation.  Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one.  Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires.  Of course other people think differently.  There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of "restoring" the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.

https://lawprofessors.typepad.com/conlaw/2014/05/sunstein-on-epsteins-classical-liberal-constitution.html

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