The New Republic's Lame Attack on Libertarian Constitutionalism

Cass Sunstein, the liberal Harvard law professor and former Obama administration official recently haunted by the specter of "paranoid libertarianism," has penned a lengthy review in The New Republic of The Classical Liberal Constitution, the latest book from pioneering libertarian law professor Richard Epstein. Titled, "The Man Who Made Libertarians Wrong About the Constitution," it is, unsurprisingly, not a rave review.

"If the Supreme Court agreed with [Epstein], our constitutional law, and our nation, would be altogether different," Sunstein writes. "We would be a lot closer to what he calls a system of laissez-faire, with a far weaker national government and a more robust set of rights against federal and state interference with private property and contract." What's more, Sunstein says, even if Epstein is correct to view the Constitution as a classical liberal document, that still does not mean the rest of the legal world should follow suit. As Sunstein puts it,

even if we did accept [Epstein's libertarian] creed, we would have to ask whether federal judges, with their limited place in our constitutional order, should insist on it. Consider in this regard the cautionary words of Oliver Wendell Holmes Jr.: "If my fellow citizens want to go to Hell I will help them. It's my job."

Unhappily for Sunstein, his own allies on the left are already guilty of disregarding Justice Holmes' legal advice when it comes to such things as gay rights and abortion, two areas of the law where progressives have no problem with federal judges assuming a less limited place in our constitutional order and striking down democratically enacted statutes.

And why would they follow Holmes' advice? According to Holmes, who sat on the Supreme Court from 1902 to 1932, "a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell."

That deferential standard led Holmes to vote in favor government action in all sorts of troubling contexts, from a state law forbidding a private school teacher from instructing young children in a foreign language to the state of Virginia's desire to forcibly sterilize a teenage girl who had been raped and impregnated by the nephew of her foster mother. "We have seen more than once that the public welfare may call upon the best citizens for their lives," Holmes wrote in that latter case, known as Buck v. Bell. "It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices." Thanks to Holmes, the state's eugenics law was upheld and the sterilization procedure was performed.

Sunstein's mileage may vary, but I'll take Epstein's system of laissez-faire over Holmes' submission to state power any day.