This essay offers a brief critique of Professor [Richard] Epstein’s notion that the Constitution is a classical liberal document and that modern constitutional law deviates in significant ways from classical liberal ideals. It argues that the premise of a classical liberal constitution, while theoretically intriguing, is not altogether historically accurate and is more a reflection of the interpretive biases of those uncomfortable with the concept of a living constitution who are deeply skeptical about the process of constitutional adaptivity. Reading classical liberal ideals into the Constitution distorts the historical context of the framing of the Constitution, as well as misinterprets the historical nature of common law constitutional interpretation. Classical liberal constitutionalism is, in essence, another brand of originalism and, like most theories of constitutional interpretation, has its strengths and weaknesses and falls somewhat short of providing a unified theory of constitutional law.
Tuesday, June 7, 2016
Olken on Epstein's Classical Liberal Constitution
Samuel R. Olken, John Marshall Law School, has posted The Refracted Constitution: Classical Liberalism and the Lessons of History, which appears on Iowa Law Review Online 101 (2016): 97-109: