John McGinnis Reviews Richard Epstein’s “Classical Liberal Constitution”

John McGinnis, professor of law at Northwestern University, writes in the Wall Street Journal:

Over the past three decades, Richard A. Epstein has repeatedly argued—with analytical rigor and astonishing erudition—that governments govern best when they limit their actions to protecting liberty and property. He is perhaps best known for “Takings,” his 1995 book on the losses that regulations impose on property owners. Of late, he has exposed the flaws of a government-administered health system.

In “The Classical Liberal Constitution,” Mr. Epstein takes up the political logic of our fundamental law. The Constitution, he says, reflects above all John Locke’s insistence on protecting natural rights—rights that we possess simply by virtue of our humanity. Their protection takes concrete form in the Constitution by restricting the federal government to specific, freedom-advancing and property-protecting tasks, such as establishing a procedurally fair justice system, minting money as a stable repository of value, preserving a national trade zone among the states, and, not least, guarding the rights listed in the Bill of Rights.

Mr. Epstein believes that constitutional law lost its way when it began to embrace a Progressive vision, according to which rights are created by a supposedly benevolent state. Starting especially with the New Deal legislation of the 1930s, the federal government has passed laws that redistribute wealth, water-down procedural protections for property, and dictate the relations between employers and employees. The premise of such laws is that government should establish a pattern of social justice. By such logic, the government may declare rights that are in no way natural (like the right to an old-age pension) and remove others that are fundamental (like freedom of association).

The antidote, for Mr. Epstein, is a reassertion of liberal principle aimed at helping individuals realize joint prosperity through trade and contract. In “The Classical Liberal Constitution,” he interprets provisions that are often murky in their application, like the First Amendment’s prohibition of laws “respecting an Establishment of religion.” Here he rejects a strict separation of church and state to make room for religion in the public sphere, on the grounds that accommodating many faiths provides mutual gains—a hallmark of classical liberalism.

He also uses liberal principle to judge which Supreme Court precedents should be retained and which discarded. . . .