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.
Classical Liberal Constitution or Classical Liberal Construction?,
New York University Journal of Law & Liberty
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