- The Washington Times - Saturday, April 15, 2006


By Richard A. Epstein

Cato, $15.95, 151 pages


“How Progressives Rewrote the Constitution,” by famed University of Chicago legal scholar Richard A. Epstein, has the unintended effect of finally convincing us that the so-called “Strict Constructionist” wing of American conservative thought should be put on the shelf and taken down only on winter evenings when the fire is high and the port is vintage.

Strict Constructionism as a political philosophy is founded on the Big Lie that the Founders in convention in Philadelphia in 1783 created an immutable document that must be read literally in order to guide us through the 21st Century. It should be required that each year there be a public reading (perhaps in front of the current U.S. Supreme Court) of Benjamin Franklin’s speech to the final session of that convention. George Washington, the presiding officer, called on Franklin for that purpose and since he was too feeble to stand, James Madison read the message.

In it, Franklin expressed his opposition to a number of the new Constitution’s provisions, his doubts about others, but withal his determination to vote for the document since the group had done as well as was possible under the circumstances. He urged the other delegates to vote in favor also, despite their own equally grave concerns, because future generations would likely make their own mistakes. Privately, he gave the document a useful life of no more than 50 years. Almost at once the Constitution was amended not once but 10 times. So much for tablets of stone.

Shelving the dogma would free the wonderful intellect of Mr. Epstein for more useful work. We all have enjoyed his past writing and especially his recent appearance at the Cato Institute when he confronted one of the moister cave-dwellers from Georgetown Law School.

There is no argument that American Progressives have much to answer for. The bogus sciences of sociology and eugenics stem from the movement’s doctrine that people who win jobs in government are better able to tell you how to live your life’s most intimate moments than you are yourself.

But to sustain this indictment into a broader attack on Progressivism’s offspring, the New Deal and the Constitutional rot that followed inexorably, Mr. Epstein has to contort himself too painfully. He marshals data that shows economic progress in the United States was moving smoothly — well before the 1937 transformation of the Supreme Court into an activist agency of Franklin Roosevelt that “vindicated both expansive federal powers and limited protection of individual rights of liberty and property against both federal and state regulation.”

Just what the cause of this progress (in health, life expectancy, and wages) in pre-Depression, Old Court America “is hard to pin down,” Mr. Epstein concedes, yet a few sentences later he asserts with no reason, “If the Old Court’s constitutional approach was so destructive, however, we should not have seen improvements across the board.”

Oh dear.

The preoccupation of modern conservatives (including our beleaguered president) with the notion that there is a classically correct way of viewing the Constitution is one of the prime causes of the decline in the political fortunes of Conservatism. The majority of citizens bypass this exercise because it offers few realistic remedies for the increasingly complex relationship the individual has with the many-layered institutions of government that he confronts in his daily life. The law is not a one-size-fits-all guide to life’s conflicts.

Mr. Epstein quite correctly cites three of the most disturbing of the more recent decisions from the last session of the Rehnquist Court: Gonzalez v. Raich, Lingle v. Chevron U.S.A. Inc., and Kelo v. City of New London. Each hangs on interpretations and distortions of various property protection provisions such as the Commerce Clause or the Takings Clause of the Constitution that range from loony to downright frightening.

In Gonzalez the liberal majority ruled, using the most spurious reasoning, that federal anti-marijuana laws trumped a California legal exception that allowed medical use of the drug. In Lingle, the Court upheld a Hawaiian law that protected retail franchise holders from new competition introduced by the very company that issued the franchise. And Kelo earned national headlines when a municipality ordered the destruction of a neighborhood of private homes in order to attract commercial developers who had not yet developed a coherent plan.

The point that comes to mind is that it is not enough to deride these decisions because they are Progressive in theory or leftish in execution; it is because they are stupid. Stupid decisions are the inevitable result of having judges on lower court benches and on the High Court Bench who are intellectually stunted however politically orthodox they may be.

The truth is that the Rehnquist Court was presided over by a very ordinary jurist who was surrounded by a majority of predictably pedestrian minds with a couple of truly second-rate intellects in the rear. The Roberts Court we have now may be something of an improvement, or not, but it offers no promise of a majority possessed of a rigorous grasp of reality or good sense, however conservative its instincts may be.

It also is true that all judges, and especially the Supreme Court, do not make their judgments in airless rooms where only black letter law prevails. Politics drove John Marshall no less than Roger B. Taney, Earl Warren or Warren Burger. The difference between greatness and failure in the law lies more with the level of intelligence and realistic good sense than it does to any adherence to doctrine.

It is to this target that Mr. Epstein should direct his considerable firepower. This book correctly states the seriousness of the problem; what is lacking is a credible solution. Back to the future is not it.

James Srodes is a Washington journalist-author whose latest book is “Franklin: The Essential Founding Father.”

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