Friday, January 18, 2008

Wiecek on Epstein

Syracuse University Law Professor William Wiecek, author of many books, including most recently volume 12 in the Holmes Devise History of the Supreme Court, on the Supreme Court from 1941-53 (the Stone and Vinson Courts), reviewed Richard Epstein's How Progressives Rewrote the Constitution (Cato, 2007) in the fall 2007 Law and History Review.

Highlights from the review:
Epstein contends that in the late eighteenth century, and for most of the ensuing
century, our constitutional order was organized around "the classical liberal synthesis" (14). Its basis is "classical economics," especially "Adam Smith's happy conception of the 'invisible hand'" (4). Property and contract naturally play a central role in such a regime. The individual liberties agenda of this earlier order was concerned primarily with "economic liberties and property rights" (35). In its constitutional manifestations, classical liberalism was particularly concerned with two problems, federalism and economic liberty. But the federal Constitution was not originally charged with protecting individual rights directly, being tasked rather with identifying the boundaries of federal and state power vis-à-vis each other. Thus, most of the relevant achievements of "The Old Court" (19) (the United States Supreme Court before 1937) were to be found it its commerce-clause and dormant-commerce holdings.

But then the serpent slithered into this edenic garden. Beginning in the late nineteenth century, Progressivism assaulted the constitutional order of classical liberalism in all its premises, attacking both doctrine and results. The old order did not expire on the spot; in fact its greatest triumphs still lay in the future: Lochner v. New York (1905), Adair v. United States (1908), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), and Adkins v. Children's Hospital (1923). But for reasons Epstein does not explain, and perhaps does not understand, Progressivism inexorably triumphed over its classical rival, displacing traditional beliefs with modern, antagonist ones. The only explanation that Epstein offers for this is that "the older conceptual scheme [that is, classical liberalism] did not collapse of its own weight. All that really happened was that several justices lost faith in it, without being able to show where it broke down" (66). (He does not specify who the apostates were.)

[P]artly because historians have failed him and partly because he does not seem to have been interested in making a historical inquiry in the first place, Epstein has provided us with nothing more than a conflict of shadows. Classical liberalism was slain by the ghostly apparition of the vague abstraction "Progressivism." But no real Progressives inhabit these pages. Brandeis and Frankfurter appear in cameo a few times, Pound, Woodrow Wilson, and Ernst Freund once each, but otherwise "Progressives" flit through these pages like the disembodied souls Odysseus encountered in Hades, nothing more substantial than shadows and sighs.
Read the full review here.