In the Fall 2014 CRB, Bradley C.S. Watson reviewed The Classical Liberal Constitution: The Uncertain Quest for Limited Government, by Richard A. Epstein. They have agreed to discuss questions raised in the book and review here. Richard Epstein is the Laurence A. Tisch Professor of Law at New York University. Bradley Watson is the Philip M. McKenna Professor of Politics at Saint Vincent College.

Epstein: It is very clear that both Bradley C.S. Watson and I share a common political opponent in the progressive movement, whose central tenet of the living constitution he decries in his own recent book, Living Constitution, Dying Faith; Progressivism and the New Science of Jurisprudence. Nonetheless, rather than seek to form any kind of an intellectual alliance with my work, he chooses to fight a two-front war, on the grounds that the approach that I take in The Classical Liberal Constitution also poses a different, but perhaps equal, threat to his abstract tradition of political discourse.

My own view is that Professor Watson should come down from Mt. Olympus and engage my book and the problems that it seeks to address on something closer to its own terms. The Classical Liberal Constitution is my effort to systematically deal with the evolution of constitutional doctrine from the time of the Founding through the present day. It should be obvious that I share with Professor Watson a deep displeasure of the current state of constitutional jurisprudence at the Supreme Court. On no reasonable reading can the book be thought of as an apologia for modern judges of either the progressive or conservative type. Rather it is an effort to explain in detail why both sides are in many instances wrong. But what I don’t quite get is why Watson is so unhappy, if not grumpy, about what I have written.

In this regard, his single-minded determination to conduct the argument at the highest level of abstraction does little to inform, but much to obscure. The book offers a detailed dissection of many of the key provisions of the constitutional text in light of a theory of interpretation that I am at great pains to show is consistent with the techniques of the Framers, and which indeed have a close connection to the interpretive tradition as it comes down to us through Roman and common law. For someone to take issue with the book, it would be wise to pick the discussion of at least one particular doctrine or one particular case so that the reader can figure out where the differences lie between us. But at no point does Watson even attempt that modest task.

Instead what we get is a set of overgeneralizations that do not map well into the book. He is of course correct that the institution of judicial supremacy is not explicit in the Constitution. Indeed, I go to great pains to show that Chief John Marshall clearly fudged on the issue in Marbury v. Madison (1803). It is one thing to insist that the legislature cannot force on the Supreme Court an original jurisdiction that is not conferred upon it under Article III of the Constitution, and the practice of colonial courts to refuse to take cases that did not fall within their constitutional purview was well established during the Founding period. But those state court decisions were not within a complex federalist system, so the question then arises as to what should be done when John Marshall extends the judicial power so that it allows the Courts the power to strike down federal legislation, and, further what should be done after the noted decision of Justice Joseph Story in Martin v. Hunter’s Lessee (1816), confers on the Supreme Court the power to strike down state laws that offend the Constitution.

In order to deal with this issue head-on, I develop the notion of a prescriptive constitution to deal with initial errors that have become embedded in the American constitutional tradition. Prescription is inherently messy, but it is part and parcel of every system of property rights, whereby open and consistent assertion of a property right turns what starts off as a trespass into a fully vested property right. There has to be some room for that notion in American constitutional; otherwise Marbury and Martin are goners After his cryptic account of my views on this issue, Professor Watson limply concludes “To an originalist, them’s fightin’ words.” But he never puts up any fight at all, for he never addresses the pressing question of how to deal with past error that has become canonical text some 200 years later. We are not back in Greece with Aristotle, where we could have the luxury of endless disputation. We are in a world where we have to decide whether are originalism requires us to ditch Marbury and Martin or not.

Watson can’t address this issue by chiding me for giving an incomplete analysis of what classical liberalism means, without once referring to the standard way in which I develop the concept in Chapter One. One component of the classical liberal tradition is a belief in a form of a republicanism which stands in opposition to both monarchy on the one hand and simple democracy that decides all questions by majority rule. The complex division of powers at the federal level, and between the federal government and the states offers a set of structural protections for individual rights. But many key provisions of the original Constitution, e.g. the Contracts Clause, and certainly of the Bill of Rights add in a set of additional individual protections dealing with such matters as the impairment of contracts and the protection of the free exercise of religion. Our Constitution is not a hard core libertarian doctrine, because it confers on the federal government the power to tax that is found in Article I, section 8, and the power to condemn property for public use upon payment of just compensation that is recognized by the Takings Cause in the Fifth Amendment to the Constitution.

The Classical Liberal Constitution offers a detailed consideration of all these issues. It also relies on the presumption that legislation should be examined under a presumption of error, which is reflected in the combination of structural and substantive impediments to its enactment. Watson asserts that this view is inconsistent with the “broad exercise of police power through American history,” which misses the enormous transformation of the police power between its relatively narrow version that led the Supreme Court in Lochner v. New York in (1905) to strike down a ten-hour per day maximum hours law that the Court eagerly embraced in cases like West Coast Hotel v. Parrish (1937) in the New Deal era. From the top of Mt. Olympus these may seem like small differences. But to anyone who actually wants to explain the relationship between the founding period and the modern progressives has to deal with these issues in a far more granular fashion that Professor Watson deigns to do.

Watson: Richard Epstein criticizes me for embracing an “abstract tradition of political discourse” and not attempting to form an “intellectual alliance” with his (presumably) more concrete discourse. But it is Professor Epstein’s “classical liberalism” that is the abstraction: it is a “discourse” that is at once anachronistic, and so far abstracted from the founders’ Constitution as to render the document unrecognizable. Epstein suggests that my criticisms do not “map well” into his book. But it is hard, if not impossible, for any line of criticism to do so if it takes the founders’ republicanism seriously.

Perhaps I need to restate the main points of my review, which Epstein chooses not to address. First, he offers nothing like a rigorous definition of “classical liberalism,” the book’s central theme, and the exposition of which is its titular purpose. His “standard way” of developing the concept allows it to merge with contemporary liberalism, or libertarianism, more or less at whim. Second, the founders were not “classical liberals,” nor would they have recognized the phrase. Third, the founders would be aghast at an assertion of the supremacy of the “least republican” branch. Fourth, contemporary conservatives and classical liberals (or libertarians, if there’s a difference) should equally reject such supremacy on the basis of both judicial incapacity, and the reliably progressive disposition of those who inhabit the federal bench—all of whom received their education in that crucible of progressive ideology known as the American law school. Fifth, it is an enormous mistake to assume that constitutional deliberation is possible only, or primarily, in courts of law: that constitutionalism and politics are somehow antithetical. Finally, the idea that judges can be the arbiters of a political theory, and get it right, takes a faith in elite governance that aligns Epstein with the very progressives he criticizes.

Epstein urges me to come down from Mt. Olympus, yet I am the one arguing for politics over philosophic kingship. Epstein and I agree that republicanism “stands in opposition to both monarchy on the one hand and simple democracy that decides all questions by majority rule,” and that such republicanism has a strong notion of individual rights embedded within it. But I don’t insist on calling such republicanism “classical liberalism.” I call it…republicanism (and the founders’ republicanism at that). And we also agree that “the institution of judicial supremacy is not explicit in the Constitution.” We can argue over the extent to which Marbury v. Madison and its progeny authorize it (Epstein claims they do, I claim they do not), but the real question is whether judicial superintendence of politics, which now actually exists, is desirable, or might ever be so even in the counterfactual world that Epstein envisions. And, if it’s not desirable, what, constitutionally, can be done about?

One doesn’t have to think Marbury is a “goner” to believe it cannot, legitimately, be used to support judicial supremacy, much less classical liberalism. He thinks I am “limp” for deigning to criticize his version of prescriptive constitutionalism, but what could be limper than asserting the case for judicial supremacy is made “so long as the Justices remember that it is a classical liberal constitution, with strong property rights and limited government, that they are asked to construe.” How—without abstraction—might we make sure that Justices remember such a thing, and know what “classical liberalism” requires, and come up with sufficiently precise interpretative principles and legal doctrines to enforce it—all the while upholding their oaths as judicial officers? And Epstein’s universe of judicial supremacy can easily be placed in the category of “be careful what you wish for.” Even the Justices one might think would be sympathetic to some sort of classical liberal synthesis (for example the current Chief) have proved remarkably adept at coming up with what might charitably be called fanciful justifications for the exercise of national power—on the basis of some version of prescriptive constitutionalism, albeit not a version that Epstein prefers.

Epstein asserts that all legislation should be considered under a presumption of error. I see no reason why it should, or could, be so considered in a republican system. As I suggested in my review, it would be better to examine judicial meddling in non-justiciable questions under a presumption of error (though one suspects Epstein thinks there are precious few such questions). And it would certainly be better not to assert that imperious federal courts are somehow separate from the “government,” which can indeed be oppressive. And this is especially so when such courts take away the most important republican right of all: the right to self-government. But this right, alas, seems far from the “classical liberal” autonomy that Epstein prefers.

Epstein suggests I ignore particular doctrines and cases in my treatment of his book. But I argue explicitly that his unfolding of various legal doctrines—from those surrounding standing, to civil and economic rights and liberties—is tendentious and circular. On his account they must be expounded not with the written Constitution or the common law of England in mind, but rather a talismanic “classical liberalism” fashioned by legal thinkers. Around this concept judicial medicine men must then construct elaborate rituals before which all mere mortals, including those who inhabit high office, must bow. And when it comes to cases, I challenge him to explain how his prescriptive constitutionalism can support the intellectual and legal vacuity on display from Brown v. Board (1954), to Roe v. Wade (1973), to Lawrence v. Texas (2003). Epstein’s position seems not so much to embrace prescription as sheer willfulness in defense of a status quo that (at least since the 1970s) only a progressive could love.

But I’ll get more “granular” still in suggesting what can and should be done to cabin a Supreme Court acting in accordance with “classical liberalism” as Epstein seems to understand it.

In Boumediene v. Bush (2008), a 5-4 majority of the Court upheld the dubious proposition that foreign prisoners held overseas in military custody can rely on the constitutional guarantee of habeas corpus, a result with which Professor Epstein agrees, but with which neither the president nor Congress agreed at the time the decision was handed down (nor did the American people, I would venture to guess). Constitutional officers have a duty to assert their considered interpretation of the Constitution. There are various ways in which they might do this, including judicious use by Congress of the Article III, Section 2 Appellate Jurisdiction Clause. As John Marshall himself said in the Virginia ratifying convention, “Congress is empowered to make exceptions to the appellate jurisdiction…of the Supreme Court…[going] as far as the legislature may think proper for the interest and liberty of the people.” Failing that, the president might reasonably refuse to enforce an unconstitutional decision. Both on the merits and for the purpose of setting the precedent of pushing back against an imperial judiciary, Boumediene represents an opportunity missed. President Bush might well have said—with considerable public support—that the Supreme Court got the Constitution wrong, and that he would not necessarily follow an order to release Guantanamo detainees held in military custody off U.S. soil: “Go ahead, make me.” Even a president as inarticulate as George W. Bush could have pulled it off. He would not have had to come up with his own constitutional arguments—it would have sufficed to quote from the cogent dissent of Justice Scalia, and to remind the American people that the case was decided by a single vote. He might also have quoted from Abraham Lincoln’s speech on Dred Scott, in which Lincoln rejected the idea of accepting as precedent a single non-unanimous Supreme Court decision that was contrary to legal public expectation and not in accordance with historical facts or the steady, prescriptive practices of the departments over time. It would have been a healthy exercise in constitutional government, which is far from identical with classical liberalism.

Epstein: It is quite clear to me that Professor Watson remains utterly unmoved by my responses to his initial review. So let me take some of his points one at a time.

First, “he offers nothing like a rigorous definition of ‘classical liberalism,’ the book’s central theme, and the exposition of which is its titular purpose. His ‘standard way’ of developing the concept allows it to merge with contemporary liberalism, or libertarianism, more or less at whim.”

In The Classical Liberal Constitution (p. 4), I quote the one-sentence definition that Michael McConnell, surely no constitutional amateur, gives of the classical liberal constitution: “The classical liberal tradition emphasizes limited government, checks and balances, and strong protection of individual rights.” Note that McConnell carefully uses the word “tradition,” which matters in this context. Of course the term “classical liberal” was not used by the founders; the term comes from later generations of individuals who use the term in opposition to the modern social-democratic definition of “liberal” that is associated with the progressive tradition that I explicitly criticize throughout the book. The term is also used in opposition to libertarianism, which often is considered to preclude the use of both the taxation and eminent domain powers. I have drawn this distinction repeatedly, as in my criticisms of Rand Paul. The book keeps all these notions distinct. I am puzzled as to how Watson thinks that I have used the term “more or less at whim.”

Nor is it a mistake to use this term in ways consistent with common usage, so much so that even Wikipedia—an accurate barometer of conventional wisdom—notes that the tradition builds on the work of such thinkers as “Adam Smith, John Locke, Jean-Baptiste Say, Thomas Malthus, and David Ricardo.” Note that this tradition obviously includes writers in the post-constitutional period, which is how traditions work. It is also a definition that does not ask the question of how the political theory ties in with the constitutional theory, and on that score the work of John Locke, and of course James Madison, fits in closely. Where is the mystery in all this?

Watson prefers the term “republican,” which of course was an important part of the original theory, as I stress in The Classical Liberal Constitution (pp. 23-25). At the time of the founding, “republican” and “democratic” were used in opposition to each other, where the latter was regarded as a degenerative form (mob rule) of the former. It is for this reason that the Constitution talks about a “republican form of government.” But the use of that term today also has its disadvantages. Historically, the republican tradition emphasized the military defense of the nation, and it placed less stress on individual rights. With time, the term ‘republican’ has taken on other meanings. It has become associated with the Republican Party, which does not express special fealty to Rome. And, in an odd historical twist of fate, the term has also been adopted by the Left (like Cass Sunstein and Frank Michelman) as the basis of some communitarian revival. The book defends those early republican virtues. I do not see what substantive errors or confusions are introduced by my standard use of the words “classical liberal”

Second, “the founders were not ‘classical liberals,’ nor would they have recognized the phrase.”

There is a sense in which this statement has to be true. As mentioned earlier, the term was used only afterwards to describe earlier events. The founders would not have heard the term or recognized the phrase. But they were smart fellows and a minute or two explanation would have brought the parallels home. James Madison, who invented the term “faction,” would not be deterred by the modern use of public choice analysis, even though he never heard the term, or of its champions the late James Buchanan and Gordon Tullock.

Third, “the founders would be aghast at an assertion of the supremacy of the ‘least republican’ branch”.

Again there is no surprise here. The Classical Liberal Constitution goes to great length to explain why judicial supremacy was inconsistent with the original constitutional plan. (pp. 88-97) But there is the second uneasy leg, which is whether to undo it 200+ years after it was introduced, when on balance it seems to be necessary to do so in order to preserve the Union. As I point out in the book, the entire initial structure of the judicial power turned out to be too weak, especially in its judgments that many state court judges could claim the final say on key provisions because the Exceptions Clause could let Congress keep cases from the Supreme Court. My argument here was that the prescriptive constitution—long successful use—kicks in. I am not sure whether the founders would have been aghast at judicial supremacy 200 years later. Perhaps Watson is. But few others of any philosophical orientation will join him.

Fourth, “contemporary conservatives and classical liberals (or libertarians, if there’s a difference) should equally reject such supremacy on the basis of both judicial incapacity, and the reliably progressive disposition of those who inhabit the federal bench—all of whom received their education in that crucible of progressive ideology known as the American law school.”

The misconceptions here are many. First, there is a difference between classical liberals and libertarians. Second, it is far from clear that judges are incapable of getting these issues right. The classical liberal tradition is well in many cases under the dormant Commerce Clause (a judicial invention) and on freedom of speech and religion. The real intellectual villain here is the rational basis test, which encourages judicial sloth by encouraging deference to the political branches. When courts work hard, they can think their way through to sensible solutions, which usually take on classical liberal contours. Nor is there any “reliably progressive disposition” for the justices. For 150 years, the classical liberal tradition held firm because the justices were aware of their constitutional trust. And today it is not just the justices that can go off the rails. Legislatures and presidents can do so too. Any institutional analysis requires a comparison of the relative imperfections of the various branches. A complex strategy that divides responsibility, which is what I support, goes far better than the regime of legislative or executive supremacy. Remember, it is the same law schools that train legislators and presidents, including the incumbent Barack Obama. There is no escaping their influence. The point is to put forward a normative case that has sufficient power to win over members of all three branches of government.

Fifth, it is an enormous mistake to assume that constitutional deliberation is possible only, or primarily, in courts of law: that constitutionalism and politics are somehow antithetical.

So it is, which is why I don’t assume it. There are divided responsibilities and there are many instances in which presidents refuse to sign legislation because they think it unconstitutional. That was the position of both James Madison and Grover Cleveland on many internal improvements bills that they did not think advanced the general welfare of the United States. The point here is that there are both good and bad deliberations in all forums, so that the divided strategy makes sense.

Watson is no more effective in any of strident criticisms that follow. For example, it is a mistake to think that backing off the justices will solve many problems. To give but one example, the strongest criticism of Chief Justice Roberts in NFIB v. Sebelius was that he refused to strike down the Obamacare legislation that was beyond the legislature’s power to enact under either the commerce or taxing powers. And the advocates of judicial restraint who attacked the terrible decision in Kelo v. City of New London thought, oddly enough, that it was a form of judicial activism to defer to the state legislature and state courts on the meaning of the term “public use” as it appeared in the federal constitution. It does no good to rail against the courts for their impolitic behavior, without recognizing that passive errors can be as costly as active ones. Nor does it make sense to think that all cases are ripe for judicial intervention, when that is surely not the case. Indeed, I spend a good deal of time in The Classical Liberal Constitution talking about the role of ripeness and standing in dealing with a variety of issues. Marbury v. Madison, even as construed today, does not give the court any role in declaring war—a position that I support.

There is next the antipathy that Watson expresses toward Brown v. Board, Roe v. Wade, and Lawrence v. Texas. For Watson, these cases are no-brainers because he does not believe in any form of prescription for constitutional doctrine. Hence we presumably should overturn all of these decisions right now, and go back to the earlier political struggles over these contentious issues. But I think powerful reliance interests grow up around settled practices, so it cannot be that all these decisions must be dismissed out of hand. The question is what test will distinguish between Marbury and Plessy. My answer is to keep to earlier decisions only to the extent that they tend to fortify classical liberal values. Indeed, Watson has to deal with some other cases. What would he do with the Slaughter-House Cases or Plessy v. Ferguson, which went a long way to eviscerate the Civil War Amendments that intended to flip upside down federal-state relations on the one hand, and race relations on the other? Does he think that these cases are rightly decided? Or that Reynolds v. United States, which allows the federal government to criminalize polygamy, is consistent with the guarantee of the free exercise of religion? There are real costs in taking the wholly passive position. Yet by the same token, a defense of the prescriptive constitution would not legitimate the constitutional protection for same-sex marriage, because here there is no long traditional usage. The position requires Supreme Court justices to respect history that has entrenched itself over a long time. It is not an invitation for them to remake the Constitution in their own image.

I see little reason to comment at length on Watson’s angry diatribe against Boumediene v. Bush, which I supported on somewhat different grounds. The protection of habeas corpus extends to aliens as well as citizens, and there is no territorial constraint in either the Due Process Clause of the 5th Amendment or the Suspension Clause in Article I. Of course the privilege of habeas never extended to military combatants, but it is far from unreasonable to insist that some process be afforded in order to see whether government claims that someone is an enemy combatant are sound or false, which is what courts are for. Even Montesquieu, who did not favor judicial review, thought that courts were there to make sure that the laws were properly applied in individual cases. It is a rash and dangerous doctrine to assume that there are never any judicial constraints on political abuse. But it is that sorry state of affairs that drives Bradley Watson’s dogmatic and overwrought constitutionalism.

Watson: Professor Epstein now allows that the founders did not use the term “classical liberal” because it comes “from later generations.” As I argued in both my initial review and response, this presents a big challenge to his analytical framework. The first step in grasping the thought of statesmen or philosophers is to understand them as they understood themselves. And this, in turn, requires getting one’s language right. If they didn’t call themselves classical liberals, neither should we. To do so is to risk, if not guarantee, that we will read back into their thought our own preferences and prejudices. More narrowly, if we are to interpret written constitutions only or primarily through phrases of our own definition, and constructs of our own making, written constitutionalism is a nihility. Epstein also allows that the term “republican” was in fact “an important part of the original theory,” but he does not like it, at least partly because it seems to conjure “military defense of the nation” and places “less stress on individual rights” than he would like. And I agree it does both of these things, as the founders intended when they used it.

I am surprised Epstein is satisfied with a one-sentence definition of classical liberalism that answers no relevant questions. “The classical liberal tradition emphasizes limited government, checks and balances, and strong protection of individual rights.” Well then, we are all republicans, we are all federalists, and we are all classical liberals. And it doesn’t help to distinguish classical liberalism from libertarianism by saying the former allows for “taxation and eminent domain powers.” The founders would have allowed for a lot more than that, particularly in the exercise of state police powers. In fact, many of them would have favored things with which I suspect neither Epstein nor I would be comfortable, but unlike him, I’m not willing to claim the founders were something they weren’t in order to vindicate, or realize, my own position. I would prefer to work legislatively rather than judicially—in other words, constitutionally, as the founders intended—to support my position when it comes to the nature and limits of individual rights, at least insofar as that position breaks new ground. Epstein would not.

Even in this legalistic age, it’s rather jarring to hear that “deference to the political branches” amounts merely to “sloth” on the part of the judiciary, and that if only courts work hard enough they can be counted on to “think their way through to sensible solutions.” Such unchecked energy in the judiciary is far from a leading character in the definition of good government. I agree with Epstein that, for about 150 years after the founding, there was a tradition that “held firm because the justices were aware of their constitutional trust.” The problem is that this simply wasn’t a “classical liberal” tradition, and it was one that accorded far more deference to the political branches than courts do today, and far more still than Epstein would like them to do. In Epstein’s scheme, even the sword must defer to the judicial pen. And the purse should open, or at least close, at its stroke. Epstein is “not sure whether the founders would have been aghast at judicial supremacy 200 years later,” but he is quite confident that “few others of any philosophical orientation” now are. This reminds me of The New Yorker’s Pauline Kael, who in 1972 pointed to the “special world” she lived in, knowing only “one person who voted for Nixon.” Like Kael, Professor Epstein should get out a little more.

I doubt that Epstein would agree with me that truth is unitary, but I would agree with him that errors are manifold. It’s undoubtedly the case that all human beings, and all branches of government, are prone to error, and that “passive errors can be as costly as active ones.” But surely this is an argument against judicial supremacy rather than for it—and indeed against any single, supreme arbiter of constitutional meaning. Such meaning was, and is, politically contested, and ever will be. This is not to say there are no right answers, but it is to say they are answers to which we have no reason to believe courts have special access. Contrary to Epstein’s assertions, I do not reject prescription, or the importance of reliance interests, nor do I think “there are never any judicial constraints on political abuse.” Call me an old-fashioned common lawyer, but I believe that common law courts, when they are acting as common law courts—i.e., carefully applying laws, common law doctrines and equitable principles to individual cases—are a major bulwark in the defense of liberty. But they are not the only one, and the further they stray from their core competence and mission, the more likely they are to threaten political liberty by strangling consensual government, whether in the name of a misconstrued constitutional provision, a misguided doctrine, or a political ideology. Maintaining that the political branches have little right or duty to push back against such threats strikes me as the height of legalistic hubris. As a matter of prudence as well as prescription, such pushback should probably be rare, and arise only on matters of great importance—in support of which the good constitutional sense of the people might reasonably be enlisted. Abraham Lincoln the common lawyer and Abraham Lincoln the statesman understood these things well. But then, he was no classical liberal.