Richard A. Epstein
How Progressives Rewrote the Constitution
Cato Institute, 2006
156 pages, hardcover, $15.95
ISBN 1-930865-87-2
Reviewed by Gary McGath
Copyright 2006 by Gary McGath

It's well known that the Supreme Court, under the pressure of Franklin D. Roosevelt's court packing threat, caved in and granted the federal government all manner of powers that had previously been recognized as unconstitutional. But the shift from earlier jurisprudence of limited government didn't start there. Law professor Richard Epstein shows how the trend started in the early twentieth century and has continued, in spite of some reverses, to the present day.

This is a small book but not a quick read. Epstein assumes a fair amount of understanding of the legal world; he doesn't stop to explain what Plessy v. Ferguson was about, or what "stare decisis" means. A more serious problem is that he often cites cases without mentioning in the main body of the text what year they occurred in, though the years are given in the index. If you aren't a lawyer or law student, this makes it hard to follow the timeline of legal trends. But if you can follow The Volokh Conspiracy without feeling too lost, and if you don't mind stopping to check details fairly often, you should be able to make reasonable sense of the book.

Epstein states that the Progressives of the early twentieth century "attacked the two doctrines that most limited the scope of government power -- federalism, on one hand, and the protection of individual liberty and private property, on the other," and that they "ultimately prevailed on both fronts." He focuses mostly on the ever-widening interpretation of the commerce clause of the Constitution, though he addresses other issues, such as the takings clause and general civil liberties issues.

In the nineteenth-century interpretation, Epstein tells us, the clause allowing the federal government to regulate interstate commerce gave it only a limited reach within states. For instance, it held that the antitrust laws could apply within states where business activity had "a substantial effect on nationwide economic activity." But in 1914, the Supreme Court extended this to say that Congress's regulatory authority "necessarily embraces the right to control [interstate carriers'] operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate" to the security, efficiency, and maintenance of interstate traffic. This paved the way for Wickard v. Filburn in 1942, which held that the federal government could regulate the growing of crops for your own use as "interstate commerce," and for Gonzales v. Raich (the medical marijuana case) in 2005, which held that just about any activity you can imagine is "interstate commerce." Thus, a clause which originally was written only to apply to business has become a blank warrant to intrude into people's private lives under the living, breathing Constitution.

The coverage of conventional civil liberties issues is less thorough, but the examples are more immediately shocking. Epstein mentions Oliver Wendell Holmes' upholding forced sterilization in Buck v. Bell, declaring that "three generations of imbeciles are enough," and Felix Frankfurter's judgment that Jehovah's Witnesses could legitimately be compelled to recite the Pledge of Allegiance. In the latter case, Epstein cites the "collective vision of the world" in which Frankfurter declared, "The ultimate foundation of a free society is the building tie of cohesive sentiment."

Is what the courts have done to the Constitution "judicial activism"? Epstein says, at least in the case of Kelo, that that "gets matters 180 degrees backward -- the villain of the case is excessive judicial restraint." What Epstein is saying is that the Supreme Court failed to be "activist" by imposing a limitation on the law. But I side with those who call it activist; the Supreme Court invented a new meaning of "public use" in order to justify the seizure of private property to benefit another private party.

Epstein proposes a standard which is unpopular today, but would give us considerably more safety from government under the Constitution:

If you disagree with the original text, then you cannot mend your disagreements by adding to its basic rule some exceptions that change the tenor and purpose of the document.

Unfortunately, the judges of the Supreme Court have created not just "some exceptions," but complete distortions of the tenor and purpose of the Constitution -- as he puts it in the title, they have rewritten it. I hope some judges will pay attention to this book and recognize the error of doing so.

Last revised September 9, 2006
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