Document Type
Book Review
Publication Date
1-7-2014
Publisher
Boston University School of Law
Language
en-US
Abstract
In The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013), Richard Epstein says that he "incorporates but goes beyond" originalist theory by calling for adjudication "in sync with" classical liberal theory political theory, which Professor Epstein claims underlies the Constitution. Without in any way detracting from the numerous virtues of this book, I argue that this is primarily a work of constitutional construction rather than constitutional interpretation. From the standpoint of interpretation, the background rules that best supplement the constitutional text are found in eighteenth-century fiduciary law rather than in classical liberal political theory, though the latter is relevant in many contexts. From the standpoint of adjudication, the Constitution implicitly prescribes a set of default rules, rather than reliance on political theory, to govern in the face of interpretative indeterminacy. Hence, Professor Epstein’s adjudicative scheme cannot be derived from interpretation of the Constitution but must result from constitutional construction.
Recommended Citation
Gary S. Lawson,
Classical Liberal Constitution or Classical Liberal Construction?
,
in
No. 14-2
Boston University School of Law, Law and Economics Research Paper
(2014).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/124
Comments
Published as: Classical Liberal Constitution or Classical Liberal Construction?, 8 New York University Journal of Law & Liberty 808 (2014).
Book review of The Classical Liberal Constitution: The Uncertain Quest for Limited Government by Richard Epstein (2013).