Property is the New Privacy
The Coming Constitutional Revolution
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Richard Epstein’s new book, The Classical Liberal Constitution, is the latest entry in what might be called conservative foundationalist constitutional theory. Epstein himself is one of the stalwarts of this movement, which includes libertarians as well as more traditional conservatives. The movement’s primary goal is to ensure that economic rights receive the same level of judicial protection as non-economic or personal rights, and thus to make it much more difficult for the government to regulate economic activity. Freedom of contract, for these theorists, is on a par with freedom of speech, and property rights are as important as privacy rights. The theory is foundationalist in the sense that it seeks to ground all of constitutional law on a few foundational principles and conservative in its opposition to government economic regulation.
Epstein’s version of the theory, although sophisticated and nuanced, is ultimately unpersuasive for reasons I catalogue in Part I of this Review. But the book’s real flaw lies in the underlying belief that Epstein shares with other conservative foundationalists: that economic and personal rights are equivalent and should be treated accordingly. Indeed, as I suggest in Part II, even Epstein occasionally seems reluctant to take this premise to its ultimate conclusion; he sometimes blinks.
And it turns out that the whole issue of the equivalence of economic and personal rights raises some very interesting questions about the last seventy-five years of American constitutional scholarship. Black-letter law since 1938 has unequivocally separated economic from personal rights, leaving the former largely to the mercy of the legislature while zealously protecting the latter. Surprisingly, however, as I discuss in Part III, there has been almost no sustained academic defense of that post–New Deal status quo. The little that exists is no match for the comprehensive arguments of the conservative foundationalists. Epstein and his fellow travelers are attempting to revolutionize constitutional law, and there is little or no serious scholarly opposition in the legal academy. That missing opposition, and not the book itself, is the real story.
* Herman O. Loewenstein Professor of Law, Vanderbilt University Law School. I thank Re-becca Haw Allensworth, Paul Edelman, Rick Eldridge, Brian Fitzpatrick, Ganesh Sitaraman, and participants in the Vanderbilt summer brown-bag colloquium for helpful comments on earlier drafts. Daniel Hay provided his usual superb research assistance.