Writing in The New Criterion, Prof. Hadley Arkes reviews Prof. Richard Epstein’s “The Classical Liberal Constitution.” The review seeks the moral ground of Epstein’s classical liberal approach to the Constitution.
Epstein has been identified most often as a “libertarian” in the law, but the part that has been curiously muted in him is the “moralist.” That moral perspective comes through persistently in this book, but it is indeed muted because he is also a reluctant moralist, not quite confident that principles of moral judgment will carry truths sharp enough to settle the cases that come before us.
The reach of the federal government into spheres of privacy was brought to a strikingly new level with the Civil Rights Act of 1964. Epstein counts the Act of 1964 as a decided achievement as it removed, in a stroke, the schemes of racial segregation, subtle and unsubtle, imposed in local laws. But the federal government crossed a constitutional divide when it claimed the authority to bar discriminations on the basis of race in private inns and restaurants. The law ran well beyond what used to be called “public accommodations,” for it would eventually reach virtually any business beyond a hotdog stand that was open to transactions with the public. We’ve reached the point where decisions on hiring and firing in small businesses, and even in small private colleges, may be contested in federal courts. Epstein has been emphatic and consistent in opposing the serious impairment of “the freedom of association” that has been marked by this dramatic denial of “private right”—the right of private entities at all levels to arrange their private affairs by their own, private criteria. The deeper moral argument for this private “freedom of association” was offered by the first Justice Harlan, the famous dissenter on racial segregation in Plessy v. Ferguson (1896). His argument against compulsory labor unions in the Adair case (1908) drew its moral force by finding its premises in the anti-slavery movement: Every man is the owner of his own labor; he need not justify himself if he would leave the employ of any man. But the employer is no less a natural person than the employee, and he too has the right to end his association with any employee without the need to justify himself. It is implicit in the freedom of any man that he has a right to join with others in forming a union. He is perfectly free also to refuse employment at a firm that refuses to confine its hiring to members of his union. But to say that he and his union may bar other men from taking jobs at the same firm is to violate in turn the freedom, and the natural rights, of those men who would willingly take that job and decline to join the union.
And yet, for all of his doubts at the margins, Richard Epstein has been steadfast in his conviction that there are certain traits of uprightness, of decency and fairness, that will be recognized in all places. In his book Skepticism and Freedom, he recorded a certain confidence that the “rudimentary need for cooperation” will bring the same outline of rules in all places: “The fundamental needs for human flourishing are sufficiently uniform across societies that any fundamental repudiation [of] the rules of autonomy, property, promising, and harm would lead to the disintegration of society, just as happened in Nazi Germany.” When Judge Richard Posner, in his provocative bent, remarked that the Nazis could be regarded by us as “immoralists” only by “our lights, not theirs,” Epstein loosed his terrible swift sword: “Why retreat now,” he asked, “to the difference between their lights and ours?” Moral skepticism morphed into moral relativism, and the “downside of moral relativism is that, like moral skepticism, it rejects the proposition that these truths can be made universal.
On the matter of racial segregation and discrimination, Epstein reveals no divided mind on “racists.” And yet, when it comes to schemes of racial preferences, of assigning benefits and disabilities decisively on the basis of race, he is gently dismissive of people “who still believe in the color-blind principle.” He is open, he says, to “race-conscious correctives.” Correcting what? Epstein clearly does not believe that there is any principle or formula that tells us the right distribution of jobs or incomes among races, any more than the right distribution of income among everyone else. The principle engaged in cases of race is a principle that conveys the necessary wrongness of drawing any moral inferences about people on the basis of race as though, if we knew the race of any person, we knew whether we were dealing with a good or bad man, who deserved to be welcomed or shunned, rewarded or punished. A race-corrective policy assigns benefits to some people, and takes them away from others, solely on the basis of race. If that isn’t the wrong of racism, then what is? Lincoln famously said that “As I would not be a slave, so I would not be a master.” Since he rejected slavery in principle, his rejection was quite indifferent to the question of whether he stood on the advantaged or disadvantaged side of the relation. Epstein cannot deliver himself of a judgment so emphatic about the wrong of racial discrimination in principle. But in that case, even his friends may not be clear on where he finds the wrongness of the racism he condemns—and what principles, what standards of judgment, would guide him in seeking those “correctives.”
Toward the end of the book he brings back a theme that has threaded through his commentaries: that our constitutional law would recover more readily its liberal ground if it could draw more fully on the categories and the wisdom that come along with private law. When it comes, say, to the taking of property under the Fifth Amendment, no court, he says, could hope to deal adequately with these takings “by ignoring every doctrinal development dealing with divided interests in land and with easements and servitudes over the rights of other parcels.” But even beyond the matter of property, the “private law” beckons for Epstein as a better ground in common sense for constitutional law, for it moves beyond the romance of “principles” in momentous clashes. It deals with a world in which the interests of persons are there to be adjusted, compromised, scaled down, with a sense of equity and respect for the parties even when those parties fall well short as models for the young. But where is the “natural law” in all of this? It is not the natural law grounded in moral axioms and necessary truths (even though they are indeed there to be known). It is the notion rather of natural sentiments and inclinations, flaring on and off, but working most of the time and reflecting, often enough, what Lincoln called “the better angels of our nature.” Most people will be drawn, in personal encounters, to those who show a willingness to temper their own interests with a sense of fairness and reciprocity. To a woman who complained of male boorishness in her law firm, Epstein recommended not a lawsuit but a letter to the managing partner. And that produced the result, for it stirred embarrassment and a willingness to do the right thing.
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