Epstein warns group of conservatives against a non-interventionist Supreme Court

Posted on February 13, 2009 | Type: In the News
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By ANJANETTE RILEY

Long-time supporters and patrons of the Goldwater Institute, an Arizona-based conservative think-tank, gathered Feb. 4 with great anticipation to meet Richard Epstein, the rock star of legal scholarship.

I am a groupie of two people in this world: Paul McCartney and Richard Epstein, said Clint Bolick, director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.

Viewers were lured to the lecture with promises that Epstein would address concerns over the legality of corporate bailouts and nationalized health insurance, but Epstein had other plans, choosing instead to focus on what he called the crisis of the modern style of constitutional interpretation.

But before launching into the history of constitutional law in the United States, Epstein, a University of Chicago law professor, attempted to give an explanation for his off-the-cuff style of public speaking by describing to the audience the first and only time he used speaking notes.

After speedily completing his first lecture as a law school professor, Epstein said he looked up to a sea of confused faces before one student dared to raise his hand to offer advice.

He told me, I don't know what you said so just take this piece of advice: Slow down, and start over, Epstein said. That was the last day I used a note to teach a class.

Epstein, who is widely considered one of the most influential legal thinkers of modern times, has authored more than a dozen legal books, serves as director of the Law and Economics Program at the University of Chicago Law School and as an adjunct scholar with the Cato Institute.

Epstein is possibly best known for his book Takings: Private Property and the Power of Eminent Domain, which became a discussion point during the 1991 Senate confirmation hearings of Justice Clarence Thomas when then-Senator Joe Biden denounced Epstein's approach to governmental regulation of private property.

Epstein's speech in Phoenix was a continuation of his long-time concern over the regulatory authority of the government, particularly what he calls the administrative state, or the bureaucratic departments housed in the federal executive branch.

This same thesis was the center of a 2008 article written by Epstein and published in the New York University Journal of Law & Liberty, but his speech included the added twist of deciphering the roles the Supreme Court and constitutional interpretation play in advancing the unconstitutional power of the administrative state.

The crisis of modern constitutional interpretation defined by Epstein is rooted in the modern eras deference for institutional knowledge, which allows individual government officials to advance public policy outside the restrictions of a limited government and the rule of law.

The theory of modern constitutional interpretation has become, in the eyes of many people, a theory of institutional competences in the various parts of government to deal with various types of questions, Epstein said. But the whole idea of a written constitution is completely negated, if in fact it is only the device of last resort to get you where you want to go.

In the end, Epstein's speech was cut short, but not before he warned the audience of potential damage to the long-term legitimacy of the U.S. government as a result of court rulings that allow the administrative state complete legal discretion.

If we don't get the right kind of balance, we will continue to lurch in ways that will only undermine the legitimacy of all our institutions because we have strayed too far from the ultimate principles and purposes of government, he said.

To better illuminate the constitutional crisis created by the administrative state, Epstein guided his audience through the history of common law in the United States.

According to Epstein, the original intent of the Constitution was in the tradition of British political theorist John Locke, who argued for the importance of a government system strong enough to prevent men from violating each others rights and weak enough to ensure the government cannot, in turn, violate the rights of its citizens.

This is obviously a very difficult balancing act, he said.

The right to private property, for example, does not carry the right of unlimited use.

The government certainly can keep you from using it (your property) in ways that shows aggression to other individuals, Epstein said. I cant take out my gun and shoot you because I bought the bullet from someone who had prior title to it.

But the governments responsibility to protect the public interests of the state often referred to as police power does not carry with it a legitimate claim to violating the individual rights laid out in the Constitution. To prevent over-regulation from the state, Epstein said, justices in the early 1900s interpreted the Constitution and statutory law through the lens of the limited legislative authority created by checks and balances.

I don't consider this heaven and earth, and I am not going to dance cheek-to-cheek with every 19th century judge, he said, but I do think it is a remarkably good effort to try and figure out how you run the system under a Lockean tradition.

But problems arose, Epstein said, during the administration of President Woodrow Wilson, who objected to the difficulty checks and balances created when passing laws and instead wished legislative authority to rest with the expertise of lawmakers.

The courts supported Wilson and began to define the legitimate power of the state according to the power the state agencies themselves felt they should have, Epstein said.

One method used by the courts to shift power to state agencies was to defer to the agencies when questioning the language of statutory law or the Constitution.

It is not constitutional law that starts with the text, Epstein said. It sort of starts with an abstract deliberation and in effect takes a view which gives you much too much administrative discretion.

Epstein used the example of the federal governments long-time authority to regulate navigable waters to demonstrate the denaturing of statutory terms.

According to Epstein, the logical definition of navigable waters used by the courts for most of the nations history a body of water large enough to be navigated by a boat was altered during the presidency of Jimmy Carter, when department heads argued that the state should have the legal discretion to define the term on a case-by-case basis.

So now, if a person puts a tractor on their land and it creates ruts that fill with water, all of a sudden those ruts become a protected wetland, and you cant build there unless you get permission from the administrative state, Epstein said. This is what happens if you get this enormous level of administrative discretion built into the system.

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