Libertarianism and Originalism in The Classical Liberal Constitution


Abstract: Richard Epstein’s The Classical Liberal Constitution is an impressive synthesis of between libertarian political theory and constitutional interpretation. Part I of this brief essay summarizes Epstein’s important contribution to constitutional scholarship, particularly his sophisticated effort to integrate originalism and libertarianism. In Part II, I consider a possible tension in his theory: Epstein’s desire to leave room for government regulation that cures market failures could potentially be used to justify a wide range of nonlibertarian forms of government intervention that might undermine the very constitutional rights that he seeks to protect. Part III suggests that the tension in Epstein’s theory can be partially mitigated by greater reliance on originalism with fewer policy-driven exceptions for market failures. Given real-world judges and political actors, this might result in greater economic efficiency as well as stronger protection for individual freedom approach. In the process of considering these issues, I focus on judicial interpretation of the Bill of Rights. It may be helpful to look at the original meaning not just in 1791, when the Bill of Rights was first enacted, but also in 1868, when, as a result of the Fourteenth Amendment it became incorporated against state governments. The case of the Public Use Clause of the Fifth Amendment, which Epstein and I have both written about extensively, exemplifies each of these points.