Readers of my AB posts know that a recurring theme of mine is the right’s cooptation of the word “freedom” to disembody the word from actual physical freedom–e.g., from imprisonment–or from personal choice, and to instead define it as a Reagan-era Conservative Legal Movement checklist. And that these folks achieve this by declaring it mandated by the Constitution’s “structure,” an oddly phantom foundation visible only to them. It’s a pernicious gimmick that five current Supreme Court justices are using to effectively rewrite the Constitution.
In a lengthy article published yesterday in the New Republic, Cass Sunstein, a former longtime University of Chicago law professor, then an Obama-administration official, and now a law professor at Harvard, deconstructs the provenance of this stunningly successful gimmick. The article is called “The Man Who Made Libertarians Wrong About the Constitution: How Richard Epstein’s highly influential, highly politicized scholarship cemented Tea Party dogma.” The occasion for it is a review of a newly published book by the man in question: Sunstein’s former University of Chicago law school colleague Richard Epstein titled “The Classical Liberal Constitution: The Uncertain Quest for Limited Government.”
For those unfamiliar with the term “classical liberalism,” the Wikipedia article on it describes it as “a political philosophy and ideology belonging to liberalism in which primary emphasis is placed on securing the freedom of the individual by limiting the power of the government.” The article continues:
The philosophy emerged as a response to the Industrial Revolution and urbanizationin the 19th century in Europe and the United States. It advocates civil liberties with a limited government under the rule of law, private property rights, and belief in laissez-faire economic liberalism. Classical liberalism is built on ideas that had already arisen by the end of the 18th century, including ideas of Adam Smith, John Locke, Jean-Baptiste Say, Thomas Malthus, and David Ricardo. It drew on a psychological understanding of individual liberty, natural law, utilitarianism, and a belief in progress.
Sunstein makes two key points: One is that what Epstein calls classical liberalism is not universally accepted as actual classical liberalism, although Epstein and the Tea Party right pretend that it is. The other is that there is nothing at all in the Constitution itself or in the history of the era of its drafting to suggest that their claim about the purpose and nature of the Constitution is accurate. It is instead simply a modern-day rightwing political ideology that its proponents–i.e., they–trumpet as the framers’. It is, in essence, a fraud.
To those two points, I’ll add another: Whatever Epstein’s own beliefs are regarding the constitutional rights of individuals vis-a-vis the states, the five current “structuralist” justices invoke an imagined states-as-sovereigns construct inherent in the Constitution and attribute it to James Madison, in order to aggressively–obsessively–privilege the supposedly structurally sovereign state courts and state and local prosecutors over the constitutional rights of individuals, and over the federal government. The legislative and executive branches, though, are not so sovereign; not when their official acts conflict with the Republican political or ideological agenda, anyway. The Constitution’s Supremacy Clause could audition as a Cirque du Soleil performer. So, for that matter, could the post-Civil War amendments and the laws that effectuate them. They serve a purpose, but mainly as needed by rightwing culture warriors. The Voting Rights Act, for example, need not apply, notwithstanding that the Fifteenth Amendment expressly authorizes such a law; there’s that structural barrier, y’know, and the Constitution’s original framers wouldn’t approve.
Sunstein ends his article by calling this spade a spade. “[A] judicially engineered constitutional revolution is not what America needs now,” he says. But it is what we’re seeing.