The Classical Liberal Constitution

Scholars from around the country gathered at NYU Law for a symposium on February 10 to discuss The Classical Liberal Constitution, the latest book by Laurence A. Tisch Professor of Law Richard Epstein. In his book, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that he says animated the framers’ original text, and to the limited government that this theory supports.

Mario Rizzo discusses classical liberalism.

Mario Rizzo discusses classical liberalism.

The daylong symposium, cosponsored by the Classical Liberal Institute (CLI), which Epstein directs, and the NYU Journal of Law and Liberty, was divided into three panels. The first focused on structural aspects of the classical liberal constitution, as presented by Epstein, including the roles of each branch of the federal government, separation of powers, and federalism. Epstein argues for a traditional view of separation of powers at the federal level that cuts against the progressive effort to build administrative agencies into the system. He also defends on both structural and textual grounds the pre-1937 view of limited commerce and taxing powers against the progressive position that envisions a broad role for government in both these areas. Moderated by NYU Economics Professor and CLI Co-Director Mario Rizzo, the first panel included Sudler Family Professor of Constitutional Law Richard Pildes, Aziz Huq from University of Chicago Law School, and Michael Greve and Richard Wagner from George Mason University School of Law. “Richard has a tremendous vitality in intellect that is still completely overwhelming,” said Pildes, “even at a stage of his career at which many other people have chosen to slow down…. It’s particularly evident in this book, because what Richard has done here is not just pull together things he’s written in the past and sort of synthesize them into some culminating statement, but he’s pushed himself to think more systematically about areas that he has not written about nearly as extensively before.”

Panelists on the day's second panel discuss Epstein's conception of individual rights.

Panelists on the day’s second panel discuss Epstein’s conception of individual rights.

Participants in the day’s second panel evaluated Epstein’s presentation of the classical liberal constitution’s theory of individual rights, including property, liberty, contract, speech, religion, and equal protection. In particular, the discussion focused on principles used to assesss limits on government power. Professor of Law Christopher Sprigman moderated, and panelists included David Boies Professor of Law Daryl Levinson, AnBryce Professor of Law Deborah Malamud, Koch-Searle Fellow Steven Menashi, Thomas Merrill of Columbia Law School, and Ilya Somin of George Mason. Malamud, who noted that she had been Epstein’s student at the University of Chicago Law School, opened her remarks with a historical question: “Why did we abandon the 19th-century version of classical liberalism in the first place? Why did it lose to [in Epstein’s words] ‘the progressive counter-revolution that culminated in the tumultuous 1930s’?” The answer, she said, was that the laissez-faire approach it advocates failed to offer solutions to some of society’s most intractable problems, such as economic and racial inequality. The final panel of the day discussed Epstein’s theory of constitutional interpretation, in part contrasting the textualist and living constitutionalist approaches. Inez Milholland Professor of Civil Liberties Burt Neuborne moderated the discussion among Jacob D. Fuchsberg Professor of Law Barry Friedman, Professor of Law Adam Samaha, Gary Lawson of Boston University School of Law, Michael Rappaport of University of San Diego School of Law, and Nicholas Rosenkranz of Georgetown University Law Center. Commenting on Epstein’s approach to issues such as abortion rights and and gay marriage, Friedman noted, “It’s not clear that all the interpretive fights have gotten us anywhere or changed judging at all. What we ought to do is have sensible, normative debates about the Constitution, and that’s what Richard does.”

Richard Epstein signs copies of his book, The Classical Liberal Constitution.

Richard Epstein signs copies of his book, The Classical Liberal Constitution.

The symposium allotted time to Epstein to comment on what the various panelists had so say, once after the first session, and again at the end of the day. “I have participated in many discussions of my work,” Epstein said following the event, “but this occasion was the first one which the same book was put under the microscope by 15 of the ablest constitutional scholars from multiple perspectives.” At a number of points during the discussion, Epstein said, “I heard myself saying, ‘Why did I write that?’, but on other occasions, my thought was, ‘I am so glad that I wrote that.'” He added: “I think that my effort to find the third way between modern progressivism and judicial conservatism has legs. I hope that future readers of The Classical Liberal Constitution will agree.”

Watch Panel 1: Constitutional Structure

Michael Greve, George Mason University School of Law

Aziz Huq, University of Chicago Law School

Richard Pildes, NYU School of Law

Richard Wagner, George Mason University

John Yoo, Berkeley School of Law

Mario Rizzo, NYU Department of Economics (moderator)

Watch Panel 2: Individual Rights

Daryl Levinson, NYU School of Law

Deborah Malamud, NYU School of Law

Steven Menashi, NYU School of Law

Thomas Merrill, Columbia School of Law

Ilya Somin, George Mason University School of Law

Christopher Sprigman,NYU School of Law (moderator)

Watch Panel 3: Constitutional Methodology

Barry Friedman, NYU School of Law

Gary Lawson, Boston University School of Law

Michael Rappaport, San Diego University Law School

Nicholas Rosenkranz, Georgetown University Law Center

Adam Samaha, NYU School of Law

Burt Neuborne, NYU School of Law (moderator)

Courtesy of NYU Law website.