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Book Review
| Richard A. Epstein, How Progressives Rewrote the Constitution, Washington, D.C.: Cato Institute, 2006. Pp. 137. $15.95 (ISBN 1–930865–87–2).
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| This slight book (137 page plus notes) originated as a "Lecture on Constitutional Thought" delivered at the libertarian Cato Institute. Epstein contends that in the late eighteenth century, and for most of the ensuing century, our constitutional order was organized around "the classical liberal synthesis" (14). Its basis is "classical economics," especially "Adam Smith's happy conception of the 'invisible hand'" (4). Property and contract naturally play a central role in such a regime. The individual liberties agenda of this earlier order was concerned primarily with "economic liberties and property rights" (35). In its constitutional manifestations, classical liberalism was particularly concerned with two problems, federalism and economic liberty. But the federal Constitution was not originally charged with protecting individual rights directly, being tasked rather with identifying the boundaries of federal and state power vis-à-vis each other. Thus, most of the relevant achievements of "The Old Court" (19) (the United States Supreme Court before 1937) were to be found it its commerce-clause and dormant-commerce holdings. |
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But then the serpent slithered into this edenic garden. Beginning in the late nineteenth century, Progressivism assaulted the constitutional order of classical liberalism in all its premises, attacking both doctrine and results. The old order did not expire on the spot; in fact its greatest triumphs still lay in the future: Lochner v. New York (1905), Adair v. United States (1908), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), and Adkins v. Children's Hospital (1923). But for reasons Epstein does not explain, and perhaps does not understand, Progressivism inexorably triumphed over its classical rival, displacing traditional beliefs with modern, antagonist ones. The only explanation that Epstein offers for this is that "the older conceptual scheme [that is, classical liberalism] did not collapse of its own weight. All that really happened was that several justices lost faith in it, without being able to show where it broke down" (66). (He does not specify who the apostates were.) |
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We may regret that that Epstein did not develop these ideas at a depth commensurate with their importance. He offers no explanation of what Progressivism was or who the Progressives were. Surely a movement or its members who were so influential that their baleful ideas vanquished a far wiser intellectual and legal order ought to be at least identifiable. To be fair, Epstein is not a historian and has no pretensions to becoming one. But even if he had done the historical research necessary to identify Progressivism and the Progressives, he would have discovered that historians have not been able to do much better. We have done a good job of tracing the thought and accomplishments of individuals like John Dewey and Roscoe Pound, but we have not satisfactorily established the reality of a Progressive movement, or even several of them. Nor have we convincingly demonstrated the existence of a cohesive body of Progressive thought and doctrine, identifiable enough that we can confidently agree that X was a Progressive or Y a distinctively Progressive idea. |
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Thus, partly because historians have failed him and partly because he does not seem to have been interested in making a historical inquiry in the first place, Epstein has provided us with nothing more than a conflict of shadows. Classical liberalism was slain by the ghostly apparition of the vague abstraction "Progressivism." But no real Progressives inhabit these pages. Brandeis and Frankfurter appear in cameo a few times, Pound, Woodrow Wilson, and Ernst Freund once each, but otherwise "Progressives" flit through these pages like the disembodied souls Odysseus encountered in Hades, nothing more substantial than shadows and sighs. Surely, from Epstein's perspective, the story he tells is a tragedy: a noble, wise, beneficent constitutional system was displaced by an ill-advised statist society that desecrates the hallowed rights of property and violates personal liberty. Nowhere, however, do we see why such a catastrophe has befallen the benign legal order of our ancestors. Despite his title, Epstein does not tell us "how" the Progressives rewrote the Constitution, much less why they did or how they were able to succeed in doing so. |
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There may be a topic here, even a thesis, and these might even have some merit. But it will take much more than the slight sketch that Epstein has provided even to ignite the argument, much less carry it off. |
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| William M. Wiecek
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| Syracuse University College of Law |
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