How Progressives Rewrote the Constitution, the book

How Progressives Rewrote the Constitution

By  Richard A. Epstein

Read July-August 2009

This book, though important, is not easy to read. Richard Epstein assumes his reader is versed in the foundations of classical liberalism, (private property, individualism, limited government, self-determination), which he espouses, and has an understanding of many Supreme Court cases. Fortunately, I have read  four other Epstein books, so his phraseology and his turf is familiar.

Once, there was the Old Court. Its protection of individualism and its insistence on open competition held through about 1930. Then the New Court, dominated by Progressive thought, chipped away at these things.

What does he mean by competition? Competition between businesses, primarily. He deals with the use of the Commerce Clause to gradually cede authority over trade to the federal government. This resulted in less competition, a loss to consumers, a gain to federal power, a loss for states’ authority. He covers the gradual changes over the course of several cases. Labor unions and agriculture were considered special cases and got immunity from competition, to the harm of founding principles.

As I read, I think, how could I re-phrase this so that someone unfamiliar with Epstein’s ideas, and unfamiliar with court cases, could understand it? His ideas are important enough to communicate with a larger audience. Freedom ought to be understandable. High schoolers need to understand how the Constitution originally restrained the federal power and how things changed. Now, the President exercises a prerogative of firing the CEO of General Motors,  Congress feels able to lend money to, and thus control executive compensation at, private corporations, and executive branch regulations pick winners and losers, a function the marketplace used to perform. The Old Court wouldn’t allow those things.

He deals with common carriers, the takings clause of the 5th Amendment, the National Labor Relations Board and Act, land-use regulation, levels of judicial scrutiny, the risks of state coercion, competition as preferable to monopoly, the causes of the Great Depression being the Smoot-Hawley tariffs and the rapid deflation of the currency, living wage legslation, why firms resist unionization so fiercely, contracts normally resulting in mutual gain, etc.

He says of the Progressive position, that it gives, “liberty a narrow construction, chiefly limited to bodily integrity, and the police power a broad one, covering all ambitious social schemes.” He criticizes this position.

In Filburn, the farmer became subject to Congress’ power, and was criminal, under the Commerce Clause for feeding grain he produced to his own cows. How’s that for regulating “commerce with foreign nations and among the several states”?


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