Tags: Epstein | Rosen | Constitution | Supreme Court

Scholar Epstein Presents Vision of Constitution

By    |   Monday, 06 Oct 2014 07:57 AM

In conjunction with the opening of the fall season, Richard Epstein, a professor at New York University Law School, appeared at the Constitutions Center in Philadelphia to talk about his new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, with Theodore Ruger, deputy dean of the University of Pennsylvania Law School, this writer's alma mater.

Epstein is recognized as an important public intellectual, and this writer has heard him speak before and found him opinionated, entertaining and informative. The program was part of C-SPAN's American History TV series.

Epstein was introduced by Jeffrey Rosen, a law professor at the George Washington University Law School and director and CEO of the Constitution Center, which Rosen noted is "the only institution chartered by Congress to disseminate information about the U.S. Constitution on a nonpartisan basis." Rosen is also legal affairs editor of The New Republic and a senior nonresident fellow at the Brookings Institution.

Rosen announced that a new gallery will open in Philadelphia on Oct. 27 in a ceremony presided over by Supreme Court Justice Samuel Alito and Florida Gov. Jeb Bush. The gallery will display one of the 12 original copies of the Bill of Rights, returning there for the first time in more than 200 years, joining rare copies of the Declaration of Independence and the Constitution, one of the few venues to display "these three documents of freedom" in one place. The gallery will be named after President George H.W. Bush.

This writer became depressed while in law school about the prospects for the Constitution after studying the landmark case Wickard v. Filburn, in which the Supreme Court ruled that the federal government could regulate the cultivation of grain in one's back yard on the ground that it affected interstate commerce.

Thus it was with curiosity mixed with faint hope that readers might look to Epstein as someone who has made a career of upholding conservative values against great odds while others have given up in despair. Note that he uses the expression "stuff" a lot to refer to all sources of law. This is a refreshing departure from the tendency to speak of constitutional law with undue reverence.

Rosen, who seemed to have some difficulty managing the heft of the book, introduced Epstein as "one of the original and distinctive constitutional voices of our time," now offering "a powerful alternative to the conventional theories of constitutional interpretation, namely 'conservative originalism and progressive living constitutionalism,' called 'the classical liberal Constitution.'"

To open the discussion, Rosen asked Epstein to explain his view that scholars should "go against the grain" and re-examine conservatives' excessive deference to courts and legislatures and their reluctance to embrace "principled judicial activism."

Epstein responded with criticism of the originalist view espoused by Supreme Court Justice Antonin Scalia that constitutional provisions should be seen as self-contained. As a lifelong scholar of Roman law, he cited the tradition that the law is not self-contained, so "there's this whole, elaborate body of non-textual stuff that has to be read in, and that stuff essentially goes traditionally under the name of the 'police power.'"

So as predicted, Epstein has already used the word "stuff" twice in his very first remarks.

(Archived video can be found here.)

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Robert-Feinberg
In conjunction with the opening of the fall season, Richard Epstein, a professor at New York University Law School, appeared at the Constitutions Center in Philadelphia to talk about his new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government.
Epstein, Rosen, Constitution, Supreme Court
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2014-57-06
Monday, 06 Oct 2014 07:57 AM
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