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

The Classical Liberal Constitution: The Uncertain Quest for Limited Government. By Richard A. Epstein. (Cambridge, MA: Harvard University Press, 2014. Pp. xv, 684. $49.95.)

The author of this study is the leading libertarian legal theorist in America. When the leading legal theorist of any perspective devotes almost a decade to writing a book about the Constitution of the United States, anyone interested in the nation's fundamental law will want to take notice. Richard A. Epstein's book does not disappoint.

Two other books articulating a classical liberal approach to constitutional law preceded that of Epstein. The first, this reviewer's To Secure These Rights [1995], maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. The second, Randy Barnett's Restoring the Lost Constitution [2004], argues that the original public meaning of the Constitution embraces a presumption of liberty that the government must overcome when exercising power. Epstein's book, in contrast, is an extended rumination about what he himself thinks a classical liberal interpretation of the Constitution requires on seemingly every significant question of constitutional law. The answers he provides stand in stark contrast to both modern conservative constitutional thought and the prevailing progressive order. This study is a work of staggering genius.

In part 1, Epstein lays the theoretical groundwork for the classical liberal synthesis, the progressive response, and constitutional interpretation in general for the more specific discussion that follows. In part 2, he addresses constitutional structures: judicial review, the legislative powers, and the executive powers. Epstein's 1987 Virginia Law Review article defending the pre-1937 conception of the commerce power has been a "must read" for serious students of constitutional law for years, and the four chapters on the subject in The Classical Liberal Constitution are equally significant. Part 3 is devoted to individual rights, including, but not limited to, freedom of contract (a linchpin for Epstein's theory), the taking of private property (the subject of Epstein's most famous book to date), freedom of speech, freedom of religion, and the equal protection of the law. In part 4, Epstein closes the book with a call to arms: "We will all be losers if we continue to think that progressive and conservative thought are the only available choices. The blunt truth is that a strong embrace of the classical liberal constitution offers the only sure path to rejuvenation of America's constitutional and political institutions" (583).

Some historians might be concerned about the conceptual nature of Epstein's history. After all, he cites almost no primary sources in support of his thesis that the "classical liberal tradition of the founding generation prized the protection of liberty and private property under a system of limited government" (17). But that concern would be unwarranted. As Gordon Wood recently put it during a public debate at Ohio Northern University about "The Supreme Court and the Uses of History," the history that historians write is "too unwieldy" for lawyers and judges to use, and it is therefore necessary for them to employ what is often called "law office history" or "history lite" so they can "get along with their work." The Classical Liberal Constitution is lawyers' history at its finest. It is a book that no judge, historian, academic lawyer, or political scientist can safely ignore.

Scott Douglas Gerber

Ohio Northern University Pettit College of Law
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Author:Gerber, Scott Douglas
Publication:The Historian
Article Type:Book review
Date:Sep 22, 2015
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