Richard A. Epstein is worried about the state of our country. “In virtually all areas of law, the Constitution has to deal with the twin questions of takings and givings” (p. 492). And Epstein thinks all parts of the Government–executive, legislative, and judicial–have overreached. “Medicare, Medicaid, and Social Security all have the capacity to bankrupt the nation” (p. 312). Epstein quotes a former President’s warning, “A government big enought to give you everything you want is a government big enough take from you everything you have” (p. 18). Epstein argues for a smaller, more compact and sustainable Government based on the original classical liberal Constitution. This 684-page tome explores the Constitution in detail. If you’re a history buff, you’ll find plenty in this book that you didn’t know about the Constitution and the Supreme Court. I found Epstein’s analysis compelling and persuasive. GRADE: A
TABLE OF CONTENTS:
Preface: My Constitutional Odyssey
Part One: Preliminaries
Introduction: Our Two Constitutions
1. The Classical Liberal Synthesis
2. The Progressive Response
3. Constitutional Interpretation: The Original and the Prescriptive Constitutions
Part Two: Constitutional Structures
Section I: The Judicial Power
4. The Origins of Judicial Review
5. Marbury and Martin
6. Standing: Background and Origins
7. Modern Standing Law
8. The Political Question Doctrine
Section II: The Legislative Power
9. The Commerce Power: Theory and Practice, 1787–1865
10. The Commerce Clause in Transition: 1865–1937
11. The Commerce Clause: Transformation to Consolidation, 1937–1995
12. Constitutional Pushback: 1995 to Present, from Lopez to NFIB
13. Enumerated Powers: Taxing and Spending
14. The Necessary and Proper Clause
15. The Dormant Commerce Clause
Section III: The Executive Power
16. Basic Principles and Domestic Powers
17. Delegation and the Rise of Independent Agencies
18. Foreign and Military Affairs
Part Three: Individual Rights
Section I: Property, Contract, and Liberty
19. From Structural Protections to Individual Rights
20. Procedural Due Process: Implementing the Classical Liberal Ideal
21. Freedom of Contract
22. Takings, Physical and Regulatory
23. Personal Liberties and the Morals Head of the Police Power
Section II: Speech
24. Freedom of Speech and Religion: Preliminary Considerations
25. Force, Threats, and Inducements
26. Fraud, Defamation, Emotional Distress, and Invasion of Privacy
27. Government Regulation of the Speech Commons
28. Progressive Regulation of Freedom of Speech: Labor, Communications, and Campaign Finance
Section III: Religion
29. Free Exercise
30. The Establishment Clause: Theoretical Foundations
31. Regulation and Subsidy under the Establishment Clause
32. The Commons
Section IV: Equal Protection
33. Race and the Fourteenth Amendment
34. Citizenship and the Fourteenth Amendment
35. Equal Protection and Sex Discrimination
Part Four: Conclusion
Conclusion: The Classical Liberal Alternative
Notes
Index of Cases
General Index
Every time I hear Republicans go on about “limited government” I know what they mean – cut taxes on corporations and the rich, cut those pesky government regulations that keep the rest of us safe, and get the government out of our business – unless, of course, it is something we disapprove of, like abortion or same sex marriage. Then we’re for government interference.
Frankly, I think the “limited government” ship has sailed. We are not going back to the 18th Century. It’s a different world and withdrawing from it is not an option.
Jeff, part of what Epstein is saying is that the U.S. can’t spend a trillion dollars in Iraq and Afghanistan AND still fund Medicare, Medicaid, and Social Security. We don’t have infinity resources, we’re limited.
I’m pretty much in agreement with Jeff on this one.
Bill, I’m with Jeff on all the social issues. But financially, the U.S. is going to look a lot like Greece if we don’t get our spending under control.
15 million people had no health care until recently. Their alternative was to use Emergency Rooms, which we paid for in a different way. The plight of old people before Social Security was dire. Their kids had to foot the bills. If the rich paid the taxes they should, none of these programs would be endangered.
Patti, the improvement in health care coverage is a plus. And Social Security (which should be self-sustaining) is essential. But sending tanks and weapons to the Balkans and “trainers” to Iraq can be a slippery slope.
There is no excuse at this point for sending troops to Iraq, as far as I’m concerned. And how many of the weapons that we’ve shipped to Afghanistan are now in enemy hands? 90%?
Jeff, all our military adventures since WWII (with the exception of the First Gulf War) have been fiascos. Expensive fiascos in terms of lives and wasted money.
It’s already been said by others in this thread. Oh, except for this: BAH!
Rick, I love it when you drop a “BAH”! Epstein is a “less is more” guy. He feels that we need to concentrate on what’s important.
I can’t imagine slogging through that book, but I know such things interest you.
Rick, THE CLASSICAL LIBERAL CONSTITUTION holds a wealth of information on the Constitution and the Supreme Court. I learned a lot from reading this book.