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.”