The New Republic’s Lame Attack on Libertarian Constitutionalism

Cass Sunstein, the liberal
Harvard law professor and former Obama administration official
recently haunted by the specter of
“paranoid libertarianism,” has penned a
lengthy review in The New Republic of
The Classical Liberal Constitution, the latest book
from pioneering libertarian law professor Richard Epstein. Titled,
“The Man Who Made Libertarians Wrong About the Constitution,” it
is, unsurprisingly, not a rave review.

“If the Supreme Court agreed with [Epstein], our constitutional
law, and our nation, would be altogether different,” Sunstein
writes. “We would be a lot closer to what he calls a system of
laissez-faire, with a far weaker national government and a more
robust set of rights against federal and state interference with
private property and contract.” What’s more, Sunstein says, even if
Epstein is correct to view the Constitution as a classical liberal
document, that still does not mean the rest of the legal world
should follow suit. As Sunstein puts it,

even if we did accept [Epstein’s libertarian] creed, we would
have to ask whether federal judges, with their limited place in our
constitutional order, should insist on it. Consider in this regard
the cautionary words of Oliver Wendell Holmes Jr.: “If my fellow
citizens want to go to Hell I will help them. It’s my job.”

Unhappily for Sunstein, his own allies on the left are already
guilty of disregarding Justice Holmes’ legal advice when it comes
to such things as gay rights and abortion, two areas of the law
where progressives have no problem with federal judges assuming a
less limited place in our constitutional order and striking down
democratically enacted statutes.

And why would they follow Holmes’ advice? According to Holmes,
who sat on the Supreme Court from 1902 to 1932, “a law should be
called good if it reflects the will of the dominant forces of the
community even if it will take us to hell.”

That deferential standard led Holmes to vote in favor government
action in all sorts of troubling contexts, from a state law

forbidding a private school teacher from instructing young
children in a foreign language to the state of Virginia’s desire to
forcibly
sterilize a teenage girl who had been raped and impregnated by
the nephew of her foster mother. “We have seen more than once that
the public welfare may call upon the best citizens for their
lives,” Holmes wrote in that latter case, known as Buck v.
Bell. “It would be strange if it could not call upon those
who already sap the strength of the State for these lesser
sacrifices.” Thanks to Holmes, the state’s eugenics law was upheld
and the sterilization procedure was performed.

Sunstein’s mileage may vary, but I’ll take Epstein’s system of
laissez-faire over Holmes’ submission to state power any day.