39 3 Epstein F

LINGUISTIC RELATIVISM AND THE

DECLINE OF THE RULE OF LAW
RICHARD A. EPSTEIN*
INTRODUCTION
Nobody today on any side of the political spectrum opposes

the rule of law. And for good reason. At a minimum, the rule
of law carries with it the idea that legal rules should be cer-
tain, so that individuals will not be left at sea as to their legal
obligations. The fixity of the law, by constraining the behavior
of political actors, also improves the odds that the liberty and
property of any individual will not be subject to continuous
political pressures and intrigue. The standard set of require-
ments for the rule of law has been summarized by Lon Fuller.
In his 1964 classic, The Morality of Law, he lists a variety of ad-
ditional constraints, including that rules be simple enough to
give clear notice of what they require, be internally consistent,
have only prospective application, possess relative constancy
over time, and be administered by neutral officials.1 For these
purposes, it is not necessary to resolve the many fine points
that arise over the proper interpretation of this doctrine. It is
quite sufficient to note that each and every one of these con-
straints presupposes that the language we use to express our
legal rules—and hence our commands to ordinary citizens
and public officials alike—is intelligible enough to meet the
requirements of fair notice and neutral interpretation, even if
public officials frequently violate (and are known to violate)
these norms. Unless that requisite level of intellectual clarity
is satisfied, then the rule of law emerges stillborn from the
mouths of philosophers and legal theorists. Linguistic coher-

* Laurence A. Tisch Professor of Law, New York University School of Law; Peter
and Kirsten Bedford Senior Fellow, Hoover Institution; James Parker Hall Distin-
guished Service Professor of Law Emeritus and Senior Lecturer, University of
Chicago. My thanks to Daniel Schwartz and Bradley Markano, NYU Law School,
Class of 2015, and Rachel Cohn, Madeline Lansky, and Krista Perry, University of
Chicago Law School, Class of 2016, and Julia Haines, Class of 2017, for their excel-
lent research assistance.
1. LON L. FULLER, THE MORALITY OF LAW 39 (1964). For my work that seeks to
show the connection between traditional systems of private property and the rule
of law, see RICHARD A. EPSTEIN, DESIGN FOR LIBERTY: PRIVATE PROPERTY, PUBLIC
ADMINISTRATION, AND THE RULE OF LAW 73–76 (2011).
584 Harvard Journal of Law & Public Policy [Vol. 39
ence is a minimum condition for the rule of law. Yet, as will

become clear, this minimalist conception of the law does not
lack any substantive component. Rightly understood, the rule
of law carries more meat on its bones than an appeal to legal
certainty. It has to make normative commitments to particular
principles—principles, I shall argue, reflected in both Roman
and common law, whose fundamental similarities are far
more important than their refined differences.2
Both the narrow and broad conceptions of the rule of law
presuppose that the tools of ordinary language are powerful
enough to allow judges and scholars to formulate legal rules
that make implementing the rule of law possible. Unfortunate-
ly, many scholars despair that the tools of textual analysis are
not strong enough to meet the persistent challenges of the lin-
guistic skeptic. Today, many people, both on the bench and in
the academy, share this all too fashionable view of ordinary
language. This undermines the rule of law, fanning the general
populist unease that now infects much of our public discourse.
At a theoretical level, it is common for linguistic skeptics to
scoff at language as the fundamental unit of law. For example,
Mark Tushnet, in his caustic review of my book Design for Lib-
erty: Private Property, Public Administration, and the Rule of Law,
celebrates the proposition that terms like “property” and “nui-
sance” “have no determinate content, which means that the
judges must actually be relying on something else to resolve
the dispute,”3 without ever letting us know what that “some-
thing else” is. This type of relativism easily extends to other
terms, most notably “liberty” and “coercion,” which have simi-
larly been attacked as otiose, most famously by Robert L. Hale.
In his highly influential essay, Coercion and Distribution in a
Supposedly Non-Coercive State,4 he finds that any refusal to deal

2. For this point in connection with the problem of the good-faith purchaser, see
Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16
J. LEGAL STUD. 43 (1987).
3. Mark Tushnet, Epstein’s Best of All Possible Worlds: The Rule of Law, 80 U. CHI.
L. REV. 487, 505 (2013). For my reply, see Richard A. Epstein, Tushnet’s Lawless
World, 80 U. CHI. L. REV. DIALOGUE 1, 5 (2013).
4. Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38
POL. SCI. Q. 470 (1923), to which I respond in RICHARD A. EPSTEIN, SKEPTICISM
AND FREEDOM: A MODERN CASE FOR CLASSICAL LIBERALISM 110–14 (2003) (criticiz-
ing Professor Hale’s expansion of the term “coercion”).

No. 3] Linguistic Relativism 585
should be regarded as coercive both in competitive and mo-

nopoly markets.
The danger of that position on the meaning of coercion and
harm is starkly illustrated by the aggressive modern applica-
tion of the idea that there is nothing wrong with limiting ordi-
nary businessmen and women, under the antidiscrimination
laws, to the choice between serving same-sex couples and los-
ing their businesses. One notable example is the recent case of
Craig v. Masterpiece Cakeshop,5 decided by the Colorado Court of
Appeals, in which the defendant cake artist, Jack Phillips, re-
fused to prepare a wedding cake for a gay couple. One of the
Commissioners, Diann Rice, said: “I would also like to reiterate
what we said in . . . the last meeting [concerning Jack Phillips].
Freedom of religion and religion has been used to justify all
kinds of discrimination throughout history, whether it be slav-
ery, whether it be the Holocaust . . . I mean, we can list hun-
dreds of situations where freedom of religion has been used to
justify discrimination. And to me it is one of the most despica-
ble pieces of rhetoric that people can use . . . their religion to
hurt others.”6
No one who understands the meaning of the terms “coer-
cion” or “harm” could make this statement. Nonetheless, in
good Orwellian fashion, this remark was made when the
Commission denied Phillips’s request to suspend a commission
order that required Phillips and his staff to undergo a reeduca-
tion program to make them aware of the dangers of discrimina-
tion in dealing with same-sex couples.7 The ability to attribute

5. No. 14CA1351, 2015 WL 4760453, at *1 (Colo. App. 2015); see also Michael
Paulson, Can’t Have Your Cake, Gays Are Told, and a Rights Battle Rises, N.Y. TIMES
(Dec. 15, 2014), http://www.nytimes.com/2014/12/16/us/cant-have-your-cake-gays-
are-told-and-a-rights-battle-rises.html?_r=2 [https://perma.cc/BVP5-PJ8A]. For an
earlier episode in the same vein, see, for example, Elane Photography, LLC v.
Willock, 309 P.3d 53, 58–59 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014), which I
criticize in Richard A. Epstein, Public Accommodations Under the Civil Rights Act of
1964: Why Freedom of Association Counts as a Human Right, 66 STAN. L. REV. 1241
(2014).
6. Alliance Defending Freedom, Revealed: Colo. commissioner compared cake artist
to Nazi (Jan. 12, 2015), http://www.adfmedia.org/News/PRDetail/9479
[https://perma.cc/J8CK-DSCD].
7. Alliance Defending Freedom, Colo. cake artist appeals gov’t ‘re-education’ order
(July 17, 2014), http://www.alliancedefendingfreedom.org/News/PRDetail/9211
[https://perma.cc/Q45F-LVZR]. (“The commission’s order requires cake artist Jack
Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex cele-
brations, forces him to re-educate his staff that Colorado’s Anti-Discrimination

coercive behavior to the victims of coercion is one dire conse-

quence of this massive breakdown in the English language.
The dangerous point here is that the excesses of the Colorado
Commission follow in linear fashion from the inability to grasp
the distinction between the mass slaughter of people in gas
chambers, on the one hand, and refusing to serve them in a
competitive market, on the other. The phrase “using religion to
hurt others” consciously elides that difference and never once
asks the question of what harm the state does to individuals
whom it forces by fines, injunctions, or imprisonment to sur-
render their religious beliefs in order to remain in business.
Note the relative sacrifices. In a competitive market, dozens of
other cake shops can, and will, serve this couple. But the pro-
prietor who is forced to either go out of business or suffer
reeducation has no such luxury in responding to government
commands. The common law entitlements were set as they
were because of the differential impact of the two sets of in-
conveniences, and that principle on refusals to deal is both
timeless and universal, for a world with multiple alternatives is
always less coercive than a world with only one. The lesson to
be learnt is that whenever there is no sense of entitlements, it is
easy to say that those who refuse to deal with others—say on
grounds of religious conscience—are in fact engaging in coer-
cion similar in kind, if less coercive, to the Nazi extermination
of the Jews—which was of course preceded by their banish-
ment from the common occupations of everyday life.
A second misguided way to justify the state coercion is to ar-
gue that there really is no coercion at all, for so long as people
have been left with a choice, they cannot be said to have suf-
fered from any form of legal duress.8 Making wedding cakes or
going out of business are the supposed choices left to Jack Phil-
lips. But as Justice Holmes said long ago: “It always is for the
interest of a party under duress to choose the lesser of two
evils. But the fact that a choice was made according to interest

Act means that artists must endorse all views, compels him to implement new
policies to comply with the commission’s order, and requires him to file quarterly
‘compliance’ reports for two years. The reports must include the number of pa-
trons declined a wedding cake or any other product and state the reason for doing
so to ensure he has fully eliminated his religious beliefs from his business.”).
8. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2787 (2014)
(Ginsburg, J., dissenting).

does not exclude duress. It is the characteristic of duress

properly so called.”9 Again, no account of duress is intelligible
without a robust account of the antecedent property rights.
There is no duress if your choice is between my watch and your
money. There is duress par excellence when your choice is con-
fined to surrendering either your watch or your money. The an-
alytics are what make the argument go. The self-conscious de-
cision to put key terms in quotation marks is sure evidence that
the sound understandings of ordinary language have been re-
jected or ignored, opening the path to near-totalitarian excess-
es. Reeducation is a dangerous word worthy of Pol Pot’s Cam-
bodia and Mao Tse-tung’s China.
It is linguistic shifts toward skepticism similar to, if less calam-
itous than, the reasoning against religious cakemakers in Colo-
rado that in large measure have fueled the expansion of gov-
ernment power from the classical liberal tradition to a modern
progressive one. This change has proceeded in two directions at
the same time. First, the constitutional limitations on the legisla-
tive power of the federal government have eroded with an ex-
pansive reading of the Commerce Clause and a diminution in the
protections afforded to private property and economic liberty.
Second, the opposite result has occurred with the unjustified ex-
pansion of judicial power that expands the constitutional limita-
tions on the state’s ability to regulate abortion and impose pun-
ishments on various criminal offenses. The case for judicial
control is stronger on the scope of federal power and the protec-
tion of property entitlements than it is in setting the definitions
and punishments of various criminal offenses. In the first two
cases it is possible to set clear boundaries on government con-
duct, which is far harder in the last two cases given that setting
punishment involves an uneasy amalgam of concerns with de-
terrence, retribution, rehabilitation, and incapacitation.
These major political interventions were driven by a view of
language that marks a sharp departure from the Framers’ con-
fidence that the English language was clear enough to organize
the fundamental institutions of government. They knew what
it meant to divide government powers into the legislative, ex-
ecutive, and judicial branches, as is done in Articles I, II, and III
of the original Constitution. They did not unduly trouble them-

9. Union Pac. R.R. Co. v. Pub. Serv. Comm’n of Mo., 248 U.S. 67, 70 (1918).

selves with the inevitable disputes that arise at the margins of

these categories, much less use borderline cases (of which there
are always many) to undo the basic contours of their system,
which features first separation of powers and then the checks
and balances among the various branches. All too often, how-
ever, the writers in the progressive tradition (who first ushered
in and then defended the Court’s New Deal jurisprudence)
take the general position that these key constitutional words
are deeply plastic and filled with inherent ambiguity, making it
difficult to maintain the initial categorical structure. That doubt
paves the way for the rise of the Fourth Branch of Govern-
ment—the independent administrative agencies like the Feder-
al Trade Commission and the National Labor Relations
Board—whose “duties,” Justice Sutherland said, “are neither
political nor executive, but predominantly quasi-judicial and
quasi-legislative,” without giving any idea as to how these
novel terms map onto the constitutional structure.10 Once this
degree of linguistic freedom is given, it becomes difficult, if not
impossible, to distill clear meanings from established texts
whose meaning had once filtered through a set of shared his-
torical experiences.
In Part I, I speculate as to why this modern view of the plia-
bility of language has risen in popularity. In Part II, I offer a
criticism of this modernist view and show the defects that fol-
low from this wholesale disregard of the possibility of recover-
ing a clear meaning from the original text of the Constitution.
In Part III, I provide some examples of how this relativist view
has shaped recent Supreme Court constitutional jurisprudence.
Part IV concludes by offering a general account as to how the
disparate examples discussed in this article link to a common
theme. The decline of intellectual rigor in the use of language
leads not only to violations of the rule of law, but also to social
welfare losses that arise when judges are allowed to upset fixed
and definite rules of property rights on the one hand, and im-
pose their own judgments about the open-textured judgments
necessarily involved in setting criminal penalties on the other.
It is a fitting irony that the current pattern of judicial decisions
flips over areas of legislative and judicial dominance from what
they should be in a well-ordered society.

10. Humphrey’s Ex’r v. United States, 295 U.S. 602, 624 (1935).

I. THE EVOLUTION OF THE MODERNIST VIEW
As a matter of intellectual history, why did this profound

change in the view of language occur, and how does it relate to
the changes in law? Historically, the legal move toward pro-
gressive thought coincided with the publication of some highly
influential philosophical and legal texts in the 1930s. I will dis-
cuss two influential staples of this literature.
On the philosophical front, perhaps the most startling mani-
festo of the 1930s was A.J. Ayer’s Language, Truth and Logic,11
which burst onto the philosophical scene as a universal manifes-
to intent on exposing the traditional false thinking on ethics and
theology. Ayer branded these entire areas of thought as devoid
of meaning because they could not be verified empirically by
use of the senses. My point here is not to criticize his views, well
critiqued in J.L. Austin’s Sense and Sensibilia, 12 but to mention
that his analysis has no ideological direction whatsoever. In-
deed, Ayer’s philosophical skepticism necessarily undermines
any consistent normative view, be it classical liberal or progres-
sive, neither of which he discusses. But Ayer’s writing does lay
the groundwork for undermining one pillar of the rule of law:
the notion that language has consistent and coherent usage.
The second landmark book is Jerome Frank’s Law and the
Modern Mind,13 written in 1930 as a breathless exposé of the in-
fantile fetish of individuals who for psychological reasons cling
to the evident fiction that law contains timeless certainties that
judges are duty-bound to find but never make. I doubt anyone
has ever endorsed the bald thesis that Frank purported to de-
molish. But again, his form of skepticism alone offers no de-
scriptive theory on human behavior or normative theory on the
proper shape of legal rules. It cannot therefore furnish the am-
munition that justifies the need for government to redress the
imbalance of power within the workplace—a burning issue
that drove the major labor law reform of the 1930s. But Frank’s
view did undermine the linguistic integrity on which the rule
of law rests, and thus made it easier for others to use linguistic

11. ALFRED J. AYER, LANGUAGE, TRUTH AND LOGIC (1936).
12. J.L. AUSTIN, SENSE AND SENSIBILIA (G.J. Warnock ed., 1960).
13. JEROME FRANK, LAW AND THE MODERN MIND (1930).

arguments to attack the classical liberal synthesis of property,

tort, and contract.
It is, therefore, no coincidence that substantive critique of the
classical liberal position on freedom of contract crested during
this period. Claims of internal incoherence are most easily
lodged against existing systems even though, theoretically,
they apply to rivals as well. The most influential critique of this
sort was offered by Robert L. Hale in his famous book review,
Coercion and Distribution in a Supposedly Non-Coercive State, 14
which was intended to show that the laissez-faire ideal of free-
dom of contract was unintelligible because it was parasitic on
an incoherent notion of coercion. But Hale admitted that the
usual definitions of coercion and duress, tied with the threat of
use of force, remained valid. Indeed, he did nothing to refute
the observation of Holmes that duress, properly understood,
necessarily involves the threat of force.15 But in his view, coer-
cion was not confined to those cases, but also permeated every
contract, so much so that “a careful scrutiny will . . . demon-
strate that the systems advocated by the professed upholders of
laissez-faire are in reality permeated with coercive restrictions of
individual freedom, and with restrictions, moreover, out of
conformity with any formula of ‘equal opportunity’ or of ‘pre-
serving the equal rights of others.’”16 His key move is that the
refusal to deal with another person is a form of coercion, on the
ground that it leaves the disappointed suitor bereft of a poten-
tial gain. The point therefore means that coercion necessarily
pervades all forms of competitive markets, so the only thing
the government can do is decide who is allowed to coerce
whom. What Hale misunderstands is the common law tradi-
tion that long recognized that the refusal to deal was not per-
missible when the defendant held a regulated or natural mo-
nopoly, at which point there was a duty of service on fair and
reasonable terms. By conflating threats of force with refusals to

14. Hale, supra note 4. Hale’s views were defended in BARBARA H. FRIED, THE
PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND
ECONOMICS MOVEMENT (1998), which I reviewed in Richard A. Epstein, The As-
sault that Failed: The Progressive Critique of Laissez Faire, 97 MICH. L. REV. 1697
(1999). I have also critiqued Hale in EPSTEIN, SKEPTICISM AND FREEDOM: A MOD-
ERN CASE FOR CLASSICAL LIBERALISM 110–14 (2003).
15. See Union Pac. R.R. Co. v. Pub. Serv. Comm’n of Mo., 248 U.S. 67, 70 (1918),
discussed at note 9, supra.
16. Hale, supra note 4, at 470.

deal in a competitive market, he establishes a false equivalence

between a robust competitive market and a lawless society,
based on force in which output levels will remain forever low.
Hale’s effort to tie his peculiar version of coercion to its ob-
served output thus renders this conceptual critique wholly
wrong-headed. Nonetheless, ideas like his had consequences,
most notably on the labor law. It is important, therefore, to note
that his theory is adapted by The Labor Injunction,17 published in
1930 by Felix Frankfurter, then Professor of Law at Harvard, and
Nathan Greene, of the New York bar. Their book passionately
attacks the injunction as the worst possible employer abuse in
labor disputes, by dismissing, as one reviewer noted, “the so-
called rights of property and liberty.” 18 Although devoid of
grand philosophical pretensions, The Labor Injunction helped
speed the passage in 1932 of the Norris–LaGuardia Act,19 which
curtailed the ability of employers to obtain injunctions in federal
court in their disputes with unions. Once again, linguistic skep-
ticism eases the path toward major political reform.
II. SHORTCOMINGS OF THE MODERNIST VIEW
So why then the legal relativism—that is, some notion that

there are no independent grounds for preferring one outcome
to another—which surfaces in different ways in different con-
texts? The simplest explanation is the best. Let a judge assume
that there are fixed meanings to controversial terms, and the
scope of judicial discretion in interpreting statutes or constitu-
tional texts is necessarily limited. For progressive law profes-
sors like Felix Frankfurter, those linguistic straitjackets would
reduce the opportunity to transform constitutional doctrine in
ways that displaced the classical liberal conception with the
progressive and New Deal views he so emphatically champi-
oned. This palpable change in the judicial approach fueled
much of Frankfurter’s jurisprudence of the period.
To give but one example, in Wilkerson v. McCarthy, 20 the
question before the Court was how much discretion a jury
should receive in making a finding of negligence under the

17. FELIX FRANKFURTER & NATHAN GREENE, THE LABOR INJUNCTION (1930).
18. Maurice Finkelstein, Book Review, 30 COLUM. L. REV. 425 (1930).
19. 29 U.S.C. § 101 et seq. (2012).
20. 336 U.S. 53 (1949).

Federal Employer Liability Act, under which neither contribu-

tory negligence nor assumption of risk constitutes a defense. 21
That statutory move put enormous pressure on the negligence
concept itself, because even the tiniest contribution of the de-
fendant’s negligence to the overall situation could lead to an
imposition of total liability. Frankfurter issued a special con-
currence of a jury finding of negligence when the plaintiff de-
liberately ignored visible warnings and barriers while taking a
dangerous shortcut at work that resulted in serious injury.
Frankfurter justified his position by noting:
The difficulties in these cases derive largely from the out-
moded concept of “negligence” as a working principle for
the adjustments of injuries inevitable under the technologi-
cal circumstances of modern industry. This cruel and waste-
ful mode of dealing with industrial injuries has long been
displaced in industry generally by the insurance principle
that underlies workmen’s compensation laws.22
Note the use of the quotation marks around the term “negli-
gence,” which is intended to introduce a note of incoherence
into a well-established concept that continues in use to this
very day. Note also that Frankfurter overstates the scope of the
“insurance principle” in workmen’s compensation laws, which
limit recovery to the losses that arise in the course of employ-
ment, which like any critical concept has generated extensive
litigation as well. Once again, the linguistic skepticism paves
the way for a clear—but insufficiently defended—policy pref-
erence. Frankfurter was a strong opponent of freedom of con-
tract, and thus missed the historical fact that the strength of the
workmen’s compensation laws lies in large measure in the
simple fact that they first came on the scene as part of volun-
tary agreements between management and workers in high-
risk industries, most notably the railroads and mining.23
It is therefore no great leap to conclude that this pervasive
sense of linguistic ambiguity is accompanied by a celebration of
the transformative purpose of law and of the justices who in-
terpret it. For insight on that point, it is best to put the philoso-

21. Id. at 61, 68.
22. Id. at 65.
23. For a more systematic explanation of the economic logic of workers’ comp-
ensation systems, see Richard A. Epstein, The Historical Origins and Economic Struc-
ture of Workers’ Compensation Law, 16 GA. L. REV. 775 (1982).

phers to one side and instead look at how judges and lawyers
view their own roles. On this point we can do no better than to
start with Justice William J. Brennan, who stated the point with
his customary clarity when he wrote:
Current Justices read the Constitution in the only way that
we can: as twentieth-century Americans. We look to the his-
tory of the time of framing and to the intervening history of
interpretation. But the ultimate question must be: What do
the words of the text mean in our time? For the genius of the
Constitution rests not in any static meaning it might have
had in a world that is dead and gone, but in the adaptability
of its great principles to cope with current problems and
current needs. What the constitutional fundamentals meant
to the wisdom of other times cannot be the measure to the
vision of our time.24
A similar sentiment has been expressed by my University of
Chicago colleague David Strauss, who invokes the common
law method to explain how it is possible to avoid the vise-like
control that an originalist approach would impose on the Con-
stitution, without falling prey to the dangerous view that all
constitutional principles are subject to nullification by the va-
garies of the judges:
The good news is that we have mostly escaped [this risk],
albeit unselfconsciously. Our constitutional system, without
our fully realizing it, has tapped into an ancient source of
law, one that antedates the Constitution itself by several cen-
turies. That ancient kind of law is the common law. The
common law is a system built not on an authoritative, foun-
dational, quasi-sacred text like the Constitution. Rather, the
common law is built out of precedents and traditions that
accumulate over time. Those precedents allow room for ad-
aptation and change, but only within certain limits and only
in ways that are rooted in the past. Our constitutional sys-
tem has become a common law system, one in which prece-
dent and past practices are, in their own way, as important
as the written Constitution itself. A common law Constitu-
tion is a “living” Constitution, but it is also one that can pro-
tect fundamental principles against transient public opinion,

24. William J. Brennan, Jr., The Constitution of the United States: Contemporary
Ratification, 27 S. TEX. L. REV. 433, 438 (1986).

and it is not one that judges (or anyone else) can simply ma-
nipulate to fit their own ideas.25
The popular positions of Brennan and Strauss are, I believe,
misguided in several ways. First, they do not distinguish clear-
ly between the meaning of a term, which may be constant over
time, and the desirability of a legal policy, which may vary from
time to time. To give but one example, the definition of a con-
tract at will—whereby an employer may fire, or a worker may
quit, for good reason, bad reason, or no reason at all—is a con-
stant in labor law. But the desirability of that position, which
was a cardinal proposition of the nineteenth century, was the
subject of sustained attack in the twentieth century by writers
who thought that this contract gave too much power to em-
ployers.26 It is possible either to defend or to attack the contract
at will, but there is no definitional twist that gives this particu-
lar phrase a meaning today different from that which it had in
the nineteenth century. It is therefore one thing to argue that
the relative dominance of large industrial firms renders the
contract at will obsolete, but quite another to argue that today
the contract at will means a contract in which termination takes
place only for cause. Indeed, the phrase “for cause” only means
that the worker has done something that merits discharge, and
the meaning of that term does not change even if there are new
reasons for discharge—for example, abuse of Internet privileg-
es—that could not have applied a century ago. In both settings,
the idea of a discharge for cause is that the worker has done
something in breach of his or her contractual duties. The fact
that these duties have changed may modify what actions count
as reasons to fire, but they do not alter the meaning of the term.
In his remarks, Justice Brennan introduces needless ambigui-
ty when he asks: “what do the words mean in our time?”27 If
the question is one of semantic meaning, the answer is that the
words have the same meaning that they have always had. But
often the term “meaning” is used in a looser sense, of what de-

25. David A. Strauss, The Living Constitution, THE RECORD ONLINE (Fall 2010),
http://www.law.uchicago.edu/alumni/magazine/fall10/strauss/ [https://perma.cc/
93YA-CTXD].
26. See, e.g., Lawrence E. Blades, Employment at Will vs. Individual Freedom: On
Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967);
Richard A. Epstein, In Defense of the Contract At Will, 51 U. CHI. L. REV. 947 (1984).
27. Brennan, supra note 24 and accompanying text.

sirability the original understanding should have in a world of

changed circumstances. But once that line of inquiry is opened
up and constitutional terms do not have a static meaning, the
sky is the limit on what can be done with a text that is not able
to speak in its own defense. Now judges have to decide exactly
how often and why they change their meaning and coloration.
Theoretically, the difficulty goes deeper because it becomes
questionable as to how the text could be understood at any
given time in history by different readers who necessarily bring
to it different background expectations; the diversity of their
backgrounds and interests makes it difficult to claim that they
all live in the same interpretive community. It is of course pos-
sible with time to reject propositions that were regarded as true
on some earlier occasion, which is what has happened with the
major shift in political beliefs since the New Deal, if not before.
But these are not differences over semantic meaning. They are
conscious differences over policy, which should be thrashed out
on the merits, and not by some skeptical linguistic ploy that
can be selectively invoked in some cases and studiously ig-
nored in others.
The passage quoted from David Strauss attempts to fill this
interpretive gap by noting that constitutional interpretation
evolves in the same sense as the common law. The difficulty
with this argument is that it oversimplifies how the common
law evolves, chiefly by ignoring its deep substantive commit-
ments. At root, the common law has been remarkably constant
in its basic propositions over centuries. As one who has studied
in detail the principles of Roman and early English law, it is
clear that they address, across time and culture, the major
problems of social organization in terms that are as familiar to
us as they were at the time that they were first uttered.28 For
example, the difficult interaction among such key notions of
tort law as intention, negligence, and wrongfulness give rise to
the identical interpretive understandings and confusions today
as they did nearly 2,000 years ago. The point is made clear by
the identical transition in both systems from a system of strict
liability with defenses to one in which either negligence or in-

28. See, e.g., Richard A. Epstein, The Static Conception of the Common Law, 9 J. LE-
GAL STUD. 253 (1980). To observe some of the parallels, see THOMAS LUND, THE
CREATION OF THE COMMON LAW: THE MEDIEVAL YEAR BOOKS DECIPHERED (2015),
to which I contributed the Foreword.

tention is made part of the prima facie case.29 The reason is that
the historical common law had as its implicit premise the con-
trol of force and fraud, and later on monopoly. The particular
rules became coherent because they were all adopted in light of
this implicit major premise. Within the framework, hard cases
necessarily arise and these issues must be attacked today just as
they were centuries ago, but only by using the techniques that
are as suitable in the one age as in the other.30
One illustration of how this incremental process works
comes in the area of deceit. “It is admitted,” said Judge Grose,
“that the action is new in point of precedent: but it is insisted
that the law recognises principles on which it may be support-
ed.”31 Grose made that statement in connection with a decision
that held that an action in deceit for fraudulent misrepresenta-
tion could be brought even if the defendant did not directly
profit from the plaintiff’s loss. The issue had not been squarely
addressed before, but it is a general proposition about deceit
that is as true today as it was when it was first uttered in 1789.32
Put otherwise: of course there are always novel circumstances

29. On this point, compare the text of the Lex Aquilia with Gaius’s Institutes.
The first chapter of the Lex Aquilia reads:
[I]f anyone wrongfully kills another’s slave of either sex, or his
fourfooted beast, let him be condemned to pay to the owner whatever
was its greatest value in the past year.
Lege aquilia capite primo cavetur: “ut qui servum servamve alienum
alienamve quadrupedem vel pecudem iniuria occiderit, quanti id in eo
anno plurimi fuit, tantum aes dare domino damnas esto.”
DIGEST 9, 2, 2, in LEX AQUILIA (James B. Thayer trans. & ed., 1929). Gaius writes:
He is held to have killed wrongfully to whose dole or fault death is
attributable, there being no law that imputes blame for loss occasioned
without wrong-doing; therefore a man goes unpunished who, by some
accident, and without fault or dole, does some damage to another’s
property.
[I]niuria autem occidere intellegitur cuius dolo aut culpa id acciderit,
nec ulla alia lege damnum quod sine iniuria datur reprehenditur; itaque
inpunitus est qui sine culpa et dolo malo casu quodam damnum
committit.
GAIUS, INSTITUTES III, § 211, in THE INSTITUTES OF GAIUS AND RULES OF ULPIAN
(James Muirhead trans. & ed., 1880).
30. See, e.g., Coggs v. Bernard, 92 Eng. Rep. 107 (K.B. 1703) (incorporating the
Roman law of bailments—the delivery of goods with the intention to redeliver—
into English law).
31. Pasley v. Freeman, 100 Eng. Rep. 450 (K.B. 1789).
32. Id.

that must be addressed, but it hardly follows that modern

judges must create novel principles to address them.
Judge Grose’s opinion in Pasley should remind us that the
basic structure of the traditional common law starts with a
small set of prima facie cases that sound in tort, contract, and
restitution. The first deals with harms to strangers, the second
with promises, and the third with benefits conferred on other
persons, not by way of gift, for which compensation is re-
quired. From the very beginning it was recognized that these
basic provisions had to be fleshed out by a set of defenses and
further qualifications,33 which was done by the explication of
the term “iniuria” in the Lex Aquila. These defenses include, in
tort, contributory negligence and assumption of risk; in con-
tracts, mistake and frustration; and in restitution, necessity and
mistake. Yet none of these standard elaborations of the basic
case in any way depends on changes in larger social contexts.
The same set of modifications that was introduced in the Lex
Aquilia of Roman times to deal with restitution when the thing
given over was destroyed or incorporated into a large structure
is as timely today as it was when first advanced. Even modern
fields like product liability law are not dependent upon the
modern modes of production, but rather on the clear sense that
modest changes to a general theory of misrepresentation are
needed to cover those cases in which a latent defect in the de-
fendant’s product causes harm in normal and proper use—the
very theory that was in fact announced at the dawn of the
modern age in Escola v. Coca Cola Bottling Co. of Fresno.34
There is also a second dimension. None of this soothing talk
about incremental changes can deny that discontinuous changes
take place in legal theory and practice, which they surely do. But

33. The theme is one that I have stressed on this subject for over forty years. See,
e.g., Richard A. Epstein, Assumption of Risk in a System of Strict Liability: Conceptual
Tangles and Social Consequences, in DEFENCES IN TORT 265 (Andrew Dyson, James
Goudkamp & Frederick Wilmot-Smith eds., 2015); Richard A. Epstein, The Not So
Minimum Content of Natural Law, 25 OXFORD J. LEGAL STUD. 219 (2005); Richard A.
Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. LEGAL STUD.
165 (1974); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151
(1973); Richard A. Epstein, Pleadings and Presumptions, 40 U. CHI. L. REV. 556
(1973).
34. 150 P.2d 436, 444 (Cal. 1944) (“The manufacturer’s liability should, of course,
be defined in terms of the safety of the product in normal and proper use, and
should not extend to injuries that cannot be traced to the product as it reached the
market.”).

these changes are not a result of changed social circumstances,

but rather are the result of a conscious change in worldview,
such as that which fueled the rise of progressivism in the first
third of the twentieth century. No longer is private property at
the center of the legal order; no longer are most legal obligations
phrased in terms of controlling force and fraud or keeping
promises. An extreme form of the attack on private-law institu-
tions comes from The Communist Manifesto,35 which states that
“the theory of the Communists may be summed up in the single
sentence: Abolition of private property.” We do not implement
changes of that magnitude through courts. Nonetheless, the case
law often contains some dramatic and discontinuous changes in
the private law. For example, key contract36 and tort37 decisions
of the 1960s and 1970s represented a conscious repudiation of
the principle of freedom of contract as applied to wide ranges of
social activities, coupled with a deep conviction that the control
of force and fraud (as with latent defects) did not set the outer
limit of legal protections. The common law thus also produces
mini-revolutions that do not, as the Strauss excerpt contends,
follow in some comfortable gradualist mode, but rather in one
that is radically discontinuous and explicitly transformative.
Thus, in product liability law, the New York Court of Appeals
rejected the latent defect requirement with its own manifesto:
“The time has come to depart from the patent danger rule enun-
ciated in Campo v. Scofield.” 38 What a blunder! The potential
scope of that one doctrinal change was not examined, but it led

35. KARL MARX & FREDERICK ENGELS, MANIFESTO OF THE COMMUNIST PARTY 22
(1848).
36. See, e.g., Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir.
1965); Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960).
37. Greenman v. Yuba Power Prods., Inc., 377 P.2d 897 (1963) (rejecting the
principle of freedom of contract and thus paving the way for far more expansive
readings of product liability law); see also Larsen v. Gen. Motors Corp., 391 F.2d
495 (8th Cir. 1968) (introducing a crashworthiness cause of action); Barker v. Lull
Eng’g Co., 573 P.2d 443 (Cal. 1978) (broad definition of product defect); Micallef v.
Miehle Co., 348 N.E.2d 571 (N.Y. 1976) (removing the open and obvious defense
in duty to warn cases).
38. Micallef, 348 N.E.2d at 573, 576 (overruling Campo v. Scofield, 95 N.E.2d 802
(N.Y. 1950) (“If a manufacturer does everything necessary to make the machine
function properly for the purpose for which it is designed, if the machine is with-
out any latent defect, and if its functioning creates no danger or peril that is not
known to the user, then the manufacturer has satisfied the law’s demands.”)). The
latent defect rule is far superior because it ties in with misrepresentation, which
the generalized cost benefit rule never does.

to at least a 100-fold increase in machine tool cases, which in

turn precipitated an immediate insurance industry crisis that
took shape by the fall of 1976, when I was hired as a consultant
by the American Insurance Association, none of whose members
had any idea as to the source in the huge upsurge in claims that
took place at that time. As I argue later, discontinuous changes
of this sort, albeit with far greater ramifications, apply to key
constitutional principles.
III. HOW THE SUPREME COURT’S LINGUISTIC SKEPTICISM

TRANSFORMS LEGAL RULES—FOR THE WORSE
In many modern disputes, the provisions of the Constitution

have held their meaning over time. That is certainly the case
with the many provisions that set out the various qualifications
for office and describe the various procedures for passing laws,
voting on treaties, and the confirmation of presidential nomi-
nees. But that practice is far from uniform, so here I shall focus
on a few important cases that ushered in the conscious repudia-
tion of this classical liberal system of limited government in two
ways at once. On the one hand, key areas of the criminal law re-
lating to both abortion and cruel and unusual punishments now
are subject to judicial oversight, without any clear textual war-
rant for government intervention. On the other hand, on eco-
nomic matters, the realist impulses have ushered in the modern
progressive social welfare state, which relies on an expansive
administrative apparatus staffed by supposedly expert and im-
partial administrators to implement major programs that re-
spond to the political preferences of the popular majority.39 To
the progressive mind, the private rights of property and contract
embodied what they regarded as somewhat obsolete institutions
that needed to be modified, regulated, and improved by massive
federal and state legislation, without critical judicial oversight.
Two dubious techniques of constitutional interpretation have
been invoked to achieve this epochal transformation, both of
which command assent from both conservative and liberal justic-
es today. The first relies on partial quotations from earlier opin-
ions, which turn their meanings upside down. Here is one exam-
ple of how an unannounced truncation of a classic text on

39. For the evolution, see RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL CONSTI-
TUTION: THE UNCERTAIN QUEST FOR LIMITED GOVERNMENT ch. 3 (2014).

privilege or immunities converts the provision for a negative right

(allowing citizens of other states equal access to the home state)
into a positive right (welfare payments for new citizens coming
into the state). In Saenz v. Roe,40 the Court had to decide whether
California, consistent with the Privileges and Immunities Clause
of the Fourteenth Amendment,41 could limit “the amount payable
to a family that has resided in the State for less than 12 months to
the amount payable by the State of the family’s prior residence.”42
That provision was a clear compromise, whereby California did
not want citizens of other states to migrate into California for its
larger benefits. But after a time, it was prepared to switch gears by
conferring eligibility. This is but one example of the kinds of
tricky compromises that are always required in a domain of posi-
tive rights.
Justice Stevens cared little for this accommodation. In dealing
with this point, he excerpts a key passage from Justice Bushrod
Washington’s well-known opinion in Corfield v. Coryell,43 which
he quotes as follows: “‘fundamental’ rights protected by the
Privileges and Immunities Clause include ‘the right of a citizen
of one state to pass through, or to reside in any other state.’”44
The purpose of this quotation is to make it appear that the rights
of those who enter one state with the intention of going else-
where should be treated the same as those who wish to reside.
Indeed, there has never been a serious textual argument that the
right to “travel” between states does not exist because the word
“travel” “is not found in the text of the Constitution.”45 If the
Clause does not apply to travel, then it becomes a nullity. Yet
when the Clause receives a sensible interpretation, it appears as
if the right to receive various welfare benefits is neatly caught by
the words “to reside” in this sentence. As written, there are no
dots at the end of the sentence to indicate what is removed. The
full sentence, which is quoted in Justice Thomas’s dissent, reads
quite differently: “The right of a citizen of one state to pass

40. 526 U.S. 489 (1999).
41. ”No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States.” U.S. CONST. amend. XIV, § 1.
42. Saenz, 526 U.S. at 492.
43. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230).
44. Saenz, 526 U.S. at 501 n.14.
45. Id. at 498.

through, or to reside in any other state, for purposes of trade,

agriculture, professional pursuits, or otherwise.”46
The first three items on the list are far removed from welfare
benefits. In principle, Justice Stevens could have explicitly ar-
gued the words “or otherwise” were sufficiently broad to cover
the welfare benefits claimed here. But the lack of explicit quota-
tion makes it clear that those two words cannot be used to take
a provision that was designed to secure parity in the traditional
negative rights—those to make contracts and do business—to
cover the right to receive welfare benefits of any sort for which
the new resident had not paid any contribution at all. The re-
sult, therefore, was to transform a provision that was intended
to create an extended free trade zone—a move of immense
structural importance—into one that allowed new citizens to
share in welfare benefits to which they did not contribute. It is
a perfect example of how the unannounced truncation of an
earlier text involves an unprincipled transformation of legal
regimes. It is one part of the systematic tendency to convert the
classical liberal constitution of 1787 and 1868 into a progressive
constitution of the New Deal.
The second and more critical technique insists that legal
terms have no clear meanings, so that formalist conceptions of
language must yield to practical considerations of modern life
that call for either a stronger conception of the central govern-
ment, or a weaker division of property rights, or both. Both of
these interpretive strategies are inconsistent with any concep-
tion of the rule of law, with its notions of consistency across
times and issues, because they promote unneeded levels of
government discretion that do not improve governance, but
which are likely to be abused at every point.
These strategies were congenial to the legal realist movement
that extolled the creative role of judges in setting aside formal-
ist doctrines and fuzzy precedents that purported to be rigor-
ous and scientific, but were in fact idle abstractions that
masked hidden policy preferences, many of which could not
survive in the light of critical reason. 47 To use the famous
phrase of Roscoe Pound, “mechanical jurisprudence,” which

46. Id. at 525 (Thomas, J., dissenting).
47. For one account of the movement, see N.E.H. Hull, Reconstructing the Origins
of Realistic Jurisprudence: A Prequel to the Llewellyn-Pound Exchange Over Legal Real-
ism, 1989 DUKE L.J. 1302.

purports to be scientific, is only “a rigid scheme of deductions

from a priori conceptions.”48 Those remarks were a consequence
of Pound’s progressive politics and his commitment to legal
pragmatism. Both these strands of legal thought are in my view
unsound: they give government officials vast and uncontrolla-
ble discretion to shift wealth and opportunities among and
across individuals and groups, thereby slighting productive
labor and encouraging factional politics. 49 From that vantage
point, it takes but a short step to conclude that established
meanings can be shifted without real cost because they ignore
the underlying realities of “time, place and person” that neces-
sarily should be taken into account to shape the evolution of
law, lest it become subservient to the dead hand of the past.50
The Constitution has not proved immune to these interpre-
tive manipulations or the desire to break through a formal text
that has outlived its usefulness. Yet regrettably, neither the ef-
fort to truncate the key writings nor the effort to trumpet the
plasticity of language is consistent with the text, structure, or
history of the Constitution. It will not do to make bald asser-
tions that both these interpretive attacks on the Constitution
are unsound. Instead, it is necessary to give, in addition to the
earlier illustrations, further concrete examples, and often to
supplement them by quoting chapter and verse so that the
reader can decide whether the evidence supports the charge of
linguistic obfuscation against the Court, and whether the
changes that these stratagems wrought count as some sort of
social improvement.
A. The Abortion Cases

Over forty years after Roe v. Wade51 imposed constitutional
limits on the state’s power to regulate abortion,52 its threadbare
reasoning is there for all to see. Historically, abortion was held
criminal in every state of the union, often for periods of more

48. Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 608 (1908).
49. For the critique, see RICHARD A. EPSTEIN, HOW PROGRESSIVES REWROTE THE
CONSTITUTION (2006).
50. Karl Llewellyn, On Warranty of Quality, and Society, 36 COLUM. L. REV. 699,
699 (1936).
51. 410 U.S. 113 (1973).
52. Id. at 162–67.

than a century.53 “By the end of the 1950’s, a large majority of

the jurisdictions banned abortion, however and whenever per-
formed, unless done to save or preserve the life of the moth-
er.” 54 In addition, the Model Penal Code had introduced its
own abortion statute, which fourteen states had adopted, with-
out any discussion about the pedigree of its constitutionality.55
Yet Roe wrought massive change by a single decision, one that
offered no clear legal theory as to why its dramatic course of
action was proper.
The most common attack on Roe is that the Court lacked the
institutional competence to make a decision that instead re-
quired close legislative attention.56 I did not, and still do not,
think that this institutional argument carries much weight, here
or anywhere else.57 High stakes issues do not require special
interpretive techniques. They only require that great attention
be attached to the use of conventional ones. Accordingly, the
serious objection to Roe comes from its defective textual and
conceptual arguments, which do not support any claim for
constitutional invalidation. After all, the decision could not as-
sign a particular clause on which its tectonic ruling might rest,
given that there is no evidence anywhere that the Constitution
was intended to work any redefinition of substantive crimes.
The fact that the challengers invoked “the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments”58 does not mean that all
of those amendments applied. It is far better evidence that, in
the absence of any textual warrant, the rote recitation of five
different constitutional amendments means that none of them
applies. The major precedents that the Court cited for its be-
havior dealt with rights of privacy, chiefly in connection with
the Fourth Amendment protection against searches and sei-
zures (where the right of privacy was invoked, for example, to
extend protection to conversations in phone booths that were
overheard by an electronic eavesdropping device attached to

53. See id. at 138–41 (summarizing American abortion laws).
54. Id. at 139.
55. Id. at 140 & n.37.
56. See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade,
82 YALE L.J. 920, 923–26 (1973).
57. See Richard A. Epstein, Substantive Due Process by Any Other Name: The Abor-
tion Cases, 1973 SUP. CT. REV. 159, 175.
58. Roe, 410 U.S. at 120.

the booth, and where the Court held that an individual had a
legitimate expectation of privacy).59
Having fought this war of dubious analogies, Justice Blackmun
then held that his newly minted right of privacy trumped the
government interest in protecting the health of the mother or the
life of the child, at least during the first trimester of pregnancy.60
In good sociological fashion, Justice Blackmun traced the long
evolution of abortion law, without once explaining how that his-
tory bore on the constitutional issues in question.61
But the conceptual weakness goes deeper, for at one point he
confessed that he had no clear theory of whether life should
begin at conception or at birth or at any point in between.62 He
then concluded: “When those trained in the respective disci-
plines of medicine, philosophy, and theology are unable to ar-
rive at any consensus, the judiciary, at this point in the devel-
opment of man’s knowledge, is not in a position to speculate as
to the answer.”63 If he had concluded, incorrectly, that neither
the health of the mother nor the wellbeing of an unborn child
were entitled to protection, his decision might make sense. But
Roe is decided against a constitutional tradition that regards
both interests as entitled to protection under the police power
of the state, recognized even in classical liberal opinions—that
is, the power to regulate private behavior on matters of health,
safety, morals, and general welfare.64
It was against this background that Roe came as something of
a shock, because the traditional views of the police power

59. See id. at 152 (citing Katz v. United States, 389 U.S. 347, 350 (1967)). In my
view, the relationship between privacy and the Fourth Amendment is much mis-
understood. For a fuller account, see generally Richard A. Epstein, Entick v. Car-
rington and Boyd v. United States: Keeping the Fourth and Fifth Amendments On
Track, 82 U. CHI. L. REV. 27 (2015).
60. Roe, 410 U.S. at 164.
61. Id. at 129–47.
62. See id. at 159 (stating the Court “need not resolve the difficult question of
when life begins”).
63. Id.
64. For one canonical reference, see Lochner v. New York, 198 U.S. 45, 53 (1905):
There are, however, certain powers, existing in the sovereignty of each
State in the Union, somewhat vaguely termed police powers, the exact
description and limitation of which have not been attempted by the
courts. Those powers, broadly stated and without, at present, any attempt
at a more specific limitation, relate to the safety, health, morals, and
general welfare of the public.

could certainly cover both the health of the mother and the life
of the unborn fetus. But in his stunning reversal of constitu-
tional doctrine, Blackmun at no point mentioned the police
power, but instead referred repeatedly to the nondescriptive
phrase “compelling state interest,” which does not link gov-
ernment power to the typical functions of the police in dealing
with health and safety. Instead, he concluded that it allowed
for some government intervention after the first trimester, but
not before.65 But it is all ipse dixit against uniform historical un-
derstandings on the scope of the criminal law. It may well be
that forty years later, the decision is so much a part and parcel
of American life that it is dangerous, even unwise, to overturn
it. 66 But none of those subsequent issues explains how the
Court in the first instance could invent a constitutional right
devoid of any discernible constitutional foundation.
The point is made clearer by noting that the health and safety
components of the police power have to be read narrowly. The
twin objectives of health and safety invoke a narrow concep-
tion of the Millian harm principle—“the only purpose for
which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to
others.”67 That purpose is necessarily fulfilled if the fertilized
egg is regarded as a person within the meaning of the harm
principle. But it should not be thought that the police power
concern with health and safety disappears even if, as Justice
Blackmun hints, the fetus is not a person within the contempla-
tion of the Fourteenth Amendment. The central question be-
comes whether the protection of the fetus is an interest that
falls within the health or safety heads of the state’s police pow-
er. Animals are not persons either, and yet they are surely af-
forded some police power protection, typically under a wide
range of anti-cruelty laws.68
Moreover, it follows from this analysis that Roe is wrong
conceptually, even if the highly contentious decision in Loch-

65. Roe, 410 U.S. at 164.
66. See EPSTEIN, supra note 39, at 375.
67. JOHN STUART MILL, ON LIBERTY 22 (2d ed. 1859).
68. For an exhaustive compilation of such laws, see Animal Protection Laws of the
United States of America and Canada, ANIMAL LEGAL DEFENSE FUND (Dec. 17, 2015),
http://aldf.org/resources/advocating-for-animals/animal-protection-laws-of-the-
united-states-of-america-and-canada/ [https://perma.cc/FXP5-S55J].

ner—which struck down a ten-hour maximum hours law for

bakers—was correct. The Lochner Court was right to reject the
contention that the maximum hour law was intended as a pub-
lic health statute.69 The reason why the Court struck down New
York’s maximum hours law was that it was convinced, rightly
in my view, that the statute was a disguised effort to invoke
health rationalizations to justify a paternalistic and anticompet-
itive law intended to stifle competition in the baking industry.70
But Holmes contested that narrow view in his famous Lochner
dissent, where he stated, without a word of support for the ten-
hour workday: “A reasonable man might think it a proper
measure on the score of health.”71 The term “police power” be-
came less important, and when it was used, the connection
with health was more tenuous than real.
Thereafter, one watershed case of the scope of government
power was Nebbia v. New York,72 which upheld a state statute
that authorized the setting of minimum prices for milk. Note
that the New York state legislature invoked a supposed health
justification, which bore little relation to the issue,73 because the
difference between milk prices and laws dealing with quaran-
tine74 and cleanliness75 are too obvious to require any discussion.
But by this time the game was really over, and the specific
phrase “police power” fell out of use under the rational-basis
test, which became the overarching test under the constitutional
law in dealing with economic liberties and private property.76

69. For proof, see DAVID E. BERNSTEIN, REHABILITATING LOCHNER: DEFENDING
INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM 23 (2011) (“[T]he bakers’ union
conceived of and promoted the hours legislation not simply to address health
concerns, but also to drive small bakeshops that employed recent immigrants out
of the industry. The union also encouraged selective enforcement of the law
against nonunion bakeries.”).
70. See Lochner, 198 U.S. at 64.
71. Lochner, 198 U.S. at 76 (Holmes, J., dissenting).
72. 291 U.S. 502 (1934).
73. Id. at 518 n.2.
74. Id. at 522–23.
75. Id. at 522.
76. For a discussion of the process in land-use cases, see ROBERT C. ELLICKSON,
VICKI L. BEEN, RODERICK M. HILLS & CHRISTOPHER SERKIN, LAND USE CONTROLS
115 (4th ed. 2013) (speaking of the “demise of the orthodox quartet [of police
power justifications]” and stating that “‘[s]uppressing competition’ is not a mem-
ber of the orthodox quartet”).

To be sure, the Millian principle has serious difficulties when

it is used to deal with competitive harms that were (at least un-
til the rise of the Progressive Era) excluded from the class of
permissible police power justification.77 The consequence of the
social transformation is the huge increase in the number of le-
gal abortions, which counts as a major social transformation in
anyone’s mind. One can call Roe an illustration of the common
law method of constitutional adjudication. But no one could
call it an incremental change.
B. Cruel and Unusual Punishments

A second example of judicial adventurism is the Supreme
Court’s modern jurisprudence dealing with the prohibition
against “cruel and unusual punishments” that is found in the
Eighth Amendment to the Constitution.78 The Clause is lifted
word for word from the English Bill of Rights of 1689, where a
stated reason for the Bill was that “illegal and cruel punish-
ments [had been] inflicted.”79
The clear meaning of this provision was to stop the use of
certain types of punishments. The exact punishments that were
caught by the prohibition were not listed, and surely the list
was capable of expansion to take into account technological
advances. Thus, if torture by rack and screw was prohibited, so
too by electrical prod. But the death penalty as such was not on
anyone’s list in England, where it was routinely applied even
after the adoption of the 1689 Bill of Rights. And in the United
States, it was not prohibited but regulated under the Bill of
Rights, which contains three other provisions that are intelligi-
ble only if the death penalty is permitted. These include the
requirement that punishment for a capital crime be on a pre-
sentment or indictment of a Grand Jury, and that no person be
“twice put in jeopardy of life or limb” or “deprived of life, lib-
erty, or property, without due process of law.”80

77. For discussion, see Richard A. Epstein, The Harm Principle—And How It
Grew, 45 U. TORONTO L.J. 369, 377–81, 409 (1995).
78. U.S. CONST. amend. VIII.
79. An Act Declaring the Rights and Liberties of the Subject, and Settling the
Succession of the Crown (Bill of Rights), 1689, I W. & M. (Eng.), available at
http://avalon.law.yale.edu/17th_century/england.asp [https://perma.cc/R2EH-
HHFH].
80. U.S. CONST. amend. V.

Nonetheless, it is an achievement of modern jurisprudence to

turn this provision upside down. The first maneuver is typical-
ly to drop the letter “s” from the Amendment so it becomes a
general prohibition against cruel and unusual punishment.
Once that is done, it follows that the Eighth Amendment is no
longer solely a barrier against certain types of punishments.
Instead it becomes a vehicle through which the Supreme Court
can apply a principle, to use the phrase of Justice Elena Ka-
gan—who in Miller v. Alabama81 accurately summarized a long,
but suspect, interpretive tradition—that the clause “guarantees
individuals the right not to be subjected to excessive sanc-
tions.” 82 The reformulation eliminates both the “cruel” and
“unusual” requirements and makes this clause into a mirror
image of that portion of the Eighth Amendment that says, more
sensibly, that “[e]xcessive bail shall not be required,”83 which
invites an inquiry into matters of degree that are foreclosed for
the “cruel and unusual punishments” clause. From this point, it
is just a short jump to a living constitution that examines this
prohibition “less through a historical prism than according to
‘the evolving standards of decency that mark the progress of a
maturing society.’”84
In her Miller opinion, Justice Kagan acted as the keeper of the
faith, but her resort to the living constitution cannot bear the
weight that is put upon it. On its face the notion is surely neu-
tral, and nothing precludes a living transformation that once
again posits the importance of the death penalty as an effective
tool for criminal deterrence, and hence narrows the scope of
the prohibition. But the pressure is all in the other direction, by
cutting back, often dramatically, on the use of the death penal-
ty. Her position in Miller also overlooked the awkward fact that
popular sentiment often does not move in the direction she
prefers. Indeed, the trends on the death penalty are too compli-
cated to fit into any simple unidirectional calculus. One recent
Gallup study summarized the situation this way: “Sixty per-
cent of Americans say they favor the death penalty for convict-
ed murderers, the lowest level of support Gallup has measured
since November 1972, when 57% were in favor. Death penalty

81. 132 S. Ct. 2455 (2012).
82. Id. at 2463 (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)).
83. U.S. CONST. amend. VIII.
84. Miller, 132 S. Ct. at 2463 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

support peaked at 80% in 1994, but it has gradually declined

since then.”85 Note that in all modern times most Americans
have supported the death penalty for murder. Indeed, these
numbers probably understate the support for the death penalty
in at least some cases, for it is quite possible that some of those
who oppose the death penalty for murder generally may sup-
port it for some select killings that are especially gruesome and
cruel. It is hard to resist the conclusion that in the hands of the
Supreme Court, evolving standards of decency are always elit-
ist, and often against dominant sentiments of the people, which
in this area of dominant public control at least should carry a
lot of weight. It is thus hard to fathom what intellectual metric
drives such political ipse dixits as Graham v. Florida, 86 which
concluded that a mandatory life sentence without parole is in-
appropriate for juveniles who commit non-homicide offenses,
or that this holding should be extended in Miller to cover a
prohibition against the use of life without parole in juvenile
homicide offenses as well. It is imperative to give some expla-
nation as to how the various weights are to be assigned in this
open-ended modernist calculus. None of these problems arise
if the Eighth Amendment is directed to certain types of pun-
ishment, a perfectly intelligible function, wholly without re-
gard to the question of proportionality.
The deficiencies of this modernist approach are most evident
in Kennedy v. Louisiana, 87 in which the Court through Justice
Kennedy concluded that the death penalty was inappropriate
in child rape cases, in large part because most states had re-
moved that penalty. But the sociological point cuts the opposite
way. If the political process works in the eighteen states that
have abolished the death penalty, why assume that it does not
work in the thirty-two states, including such opposites as Texas
and California, that retain the death penalty? 88 And of all
things, why assume that the social consensus on child rape
should hold when Congress had, in 2006, amended the Uni-

85. Jeffrey M. Jones, U.S. Death Penalty Support Lowest in More Than 40 Years,
GALLUP (Oct. 29, 2013), http://www.gallup.com/poll/165626/death-penalty-
support-lowest-years.aspx [https://perma.cc/K5QT-R6LJ].
86. 560 U.S. 48, 82 (2010).
87. 554 U.S. 407, 421–23, 426 (2008).
88. For the complete list, see States With and Without the Death Penalty, DEATH
PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/states-and-
without-death-penalty [https://perma.cc/7LCW-YRJS] (last visited Mar. 6, 2016).

form Code of Military Justice to provide for death in those cas-

es?89 It is ironic that the Court should intervene so heavily in an
area for which, outside the constitutional framework, it is hard
to develop any strong theory of the optimal levels of punish-
ment. In all cases, the choice of remedy is always more difficult
than defining the basic nature of the offense. But strong theo-
ries do work on certain key constitutional issues that pertain to
both federalism and economic matters, a theme that is devel-
oped in the next two sections devoted first to examining the
Commerce Clause and then to the constitutional protection of
private property rights.
C. Commerce Power
The evolution of the Commerce Clause involves a complex
pattern of continuous and discontinuous changes. Thus a fa-
miliar sense of gradualism allows one to explain why the
Commerce Clause reaches interstate railroads or telegraph
communications, which can easily be justified under a living
constitution, 90 precisely because the phrase “Commerce . . .
among the several States”91 is not tied to any particular instru-
mentality of interstate commerce, be it canoes or speedboats.
But the view that covers both canoes and speedboats should
make it equally clear that the Clause does not touch those jour-
neys that are intrastate or those communications that are pure-
ly local. Yet as far back as 1870, the Supreme Court bobbed and
weaved when it concluded that an intrastate journey conducted
by one company should be treated as an interstate journey be-
cause some of its passengers or freight were intended go on
into interstate commerce through some other independent in-

89. National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109–
163, § 552(b)(1), 119 Stat. 3135, 3263 (codified at 10 U.S.C. §§ 920(a)–(b) (2006))
(statutory note authorizing “death or such other punishment as a court-martial
may direct” in child rape cases, “[u]ntil the President otherwise provides”).
90. See, e.g., Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9 (1877) (“The
powers thus granted are not confined to the instrumentalities of commerce, or the
postal service known or in use when the Constitution was adopted, but they keep
pace with the progress of the country, and adapt themselves to the new develop-
ments of time and circumstances. They extend from the horse with its rider to the
stage-coach, from the sailing-vessel to the steamboat, from the coach and the
steamboat to the railroad, and from the railroad to the telegraph, as these new
agencies are successively brought into use to meet the demands of increasing
population and wealth.”).
91. U.S. CONST. art. I, § 8, cl. 3.

strumentality.92 The correct mode of interpretive incremental-

ism recognizes that the line between national and local has to
be preserved as new modalities of transportation are intro-
duced. It is no part of the common law method to blur an es-
tablished distinction, easily capable of application to these new
modalities, and then declare that the new interpretation ren-
ders all traditional decisions obsolete.
The more radical expansions of the Commerce Clause did
not, however, depend on the patient use of analogies that cov-
ered an incremental expansion of its growth to take into ac-
count new technologies. Rather, in the truly transformative
cases on the federal commerce power, it is possible to cite to
chapter and verse to show the conscious judicial efforts to ex-
pand the scope of federal power. That change is driven by two
beliefs that fundamentally underestimate the risks of govern-
ment intervention: a deep distrust of competitive federalism,
and a strong belief that competitive markets are conducive to
major social injustices. But in this instance it is instructive to do
the micro-examination to show how the new progressive polit-
ical vision (very much at work in both the abortion and pun-
ishment cases) operates.93
The Commerce Clause provides that “Congress shall have
Power . . . [t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” 94 In
dealing with its interpretation, Madison in Federalist No. 45
wrote:
The powers delegated by the proposed Constitution to the
federal government, are few and defined. Those which are
to remain in the State governments are numerous and indef-
inite. The former will be exercised principally on external
objects, as war, peace, negotiation, and foreign commerce;
with which last the power of taxation will, for the most part,
be connected. The powers reserved to the several States will
extend to all the objects, which, in the ordinary course of af-
fairs, concern the lives, liberties and properties of the people;

92. See The Daniel Ball, 77 U.S. 557, 565–66 (1870).
93 . See Richard A. Epstein, A Most Improbable 1787 Constitution: A (Mostly)
Originalist Critique of the Constitutionality of the ACA, in THE HEALTH CARE CASE:
THE SUPREME COURT’S DECISION AND ITS IMPLICATIONS 28, 44–47 (Nathaniel Persi-
ly, Gillian E. Metzger & Trevor W. Morrison eds., 2013).
94. U.S. CONST. art. I, § 8, cl. 3.

and the internal order, improvement, and prosperity of the

State.95
That position was echoed in a decision by Chief Justice Mar-
shall in Gibbons v. Ogden,96 in which the Chief Justice held that
Congress had the power to regulate an interstate journey of a
steam ship between New Jersey and New York. In it he stated:
Comprehensive as the word “among” is, it may very proper-
ly be restricted to that commerce which concerns more
States than one. The phrase is not one which would proba-
bly have been selected to indicate the completely interior
traffic of a State, because it is not an apt phrase for that pur-
pose; and the enumeration of the particular classes of com-
merce, to which the power was to be extended, would not
have been made, had the intention been to extend the power
to every description.97
The formal distinction between state and federal power had
to be scrupulously observed in the antebellum period, lest
Congress exercise its power over commerce to abolish slavery
throughout the United States, which would have made it im-
possible to put the United States together in the first place. It
was also the case that during this period very little was made
of the domestic role of the Commerce Clause at the Constitu-
tional Convention, where the real pressure was on the foreign
Commerce Clause, which closely related to the issue of the pro-
tective tariffs—an issue that divided the North from the South
in the antebellum period.98 Even after the Civil War, the princi-
ple of enumerated powers remained strong, so it was conven-
iently said that the federal government had the power to regu-
late those matters that were “directly” in interstate commerce,
but not those that had an “indirect” effect on its operations.99
Lest there be any confusion about the meaning of these terms,
the key decisions noted that direct regulation of commerce

95. THE FEDERALIST No. 45, at 227 (James Madison) (Terence Ball ed., 2003).
96. 22 U.S. (9 Wheat.) 1 (1824).
97. Id. at 194–95.
98. See, e.g., Calvin H. Johnson, The Panda’s Thumb: The Modest and Mercantilist
Original Meaning of the Commerce Clause, 13 WM. & MARY BILL RTS. J. 1, 1 (2004)
(“In the original debates over adoption of the Constitution, ‘regulation of com-
merce’ was used, almost exclusively, as a cover of words for specific mercantilist
proposals related to deep-water shipping and foreign trade.”). Laissez faire only
came later. Id.
99. See United States v. E.C. Knight Co., 156 U.S. 1, 16 (1895).

covered the shipment of goods and the transportation of per-

sons across state boundary lines. The indirect effects included
internal activities in the state, such as manufacture, that could
influence the number of people or the volume of goods that
could be shipped via interstate commerce.100
In defending this distinction, nineteenth-century cases did not
fret over the deep ambiguity of ordinary language, nor did the
Court trouble itself with its institutional limitations. The Court
emphatically took the exact opposite tack. Thus, in 1888 it said in
Kidd v. Pearson:101 “No distinction is more popular to the com-
mon mind, or more clearly expressed in economic and political
literature, than that between manufacture[] and commerce.”102
The Court explicitly noted that the balance of power would be
upset if Congress could regulate routinely all things that in “a
great variety of ways affect commerce and persons engaged in
it.”103 The Kidd Court understood that the system of enumerated
federal powers would collapse if any decision about activities
internal to any individual state could attract federal power be-
cause of its impact on the number and kind of goods shipped in
interstate commerce. The basic rule was then qualified in cases
of direct burdens on interstate commerce, narrowly construed to
deal with the inevitable conflicts in the interstate arena between
the federal power to regulate commerce and local police power
over matters of health and safety. Early on, in United States v.
Coombs,104 this principle allowed the Supreme Court to uphold
federal jurisdiction against a party who stole goods from a
beached interstate vessel, even though those behaviors were
clearly criminal under state law. Nearly a century later, in a case
closer to the margin of the federal power, was United Mine Work-
ers of America v. Coronado Coal Co.,105 which held that the federal
commerce power could reach those activities by miners inside
the state that consciously blocked the movement of coal in inter-
state commerce where those acts were undertaken with the ex-

100. See, e.g., Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 238–40
(1899); Knight, 156 U.S. at 16.
101. 128 U.S. 1 (1888).
102. Id. at 20.
103. Id. at 23.
104. 37 U.S. 72 (1838).
105. 259 U.S. 344 (1922).

plicit purpose of protecting the sales of coal mined by union

workers at other locations.
In contrast, the five-to-four Court in Hammer v. Dagenhart106
held that the interstate commerce power did not extend to
those cases in which the United States sought to prevent the
shipment of goods in interstate commerce that were made in
factories that employed children below the age of fourteen.107
This argument was premised on the need to ship goods in
commerce being so great that every local firm would yield to
the federal directive on local manufacturing issues to reach
those markets, so federal power would necessarily oust the po-
lice power of the state. The Court reinforced that decision sev-
eral years later in the Child Labor Tax Case,108 in which it held
that the federal government could not circumvent the limita-
tions of the Commerce Clause by using taxes to achieve that
same end—a structural parity between taxation and regulation
that was wholly lost in Chief Justice Roberts’s decision in Na-
tional Federation of Independent Business v. Sebelius,109 which up-
held the Affordable Care Act110 under the taxing power after
concluding that it failed to pass muster under the Commerce
Clause. Against this set of precedents, it is easy to understand
how Wickard v. Filburn111 upended the earlier synthesis by rely-
ing on the theory that Kidd and similar cases had explicitly re-
jected—namely, that Congress should have the power to regu-
late all things indirectly affecting commerce, by controlling the
quantity or price of goods shipped in interstate commerce.
By the pre-Wickard standard, the Gun-Free School Zones Act
of 1990, which forbids “any individual knowingly to possess a
firearm at a place that [he] knows . . . is a school zone,”112 clear-

106. 247 U.S. 251 (1918).
107. See id. at 276–77 (determining that the regulation of child labor in manufac-
ture was not within the federal commerce power, but rather was part of the states’
police power); Champion v. Ames, 188 U.S. 321 (1903) (adopting an expansive
interpretation of the commerce power in relation to the sale of lottery tickets,
which were legal in the states where they were made and sold, and not used
while in transit).
108. 259 U.S. 20 (1922).
109. 567 U.S. 1 (2012).
110. Pub. L. No. 111–148, 124 Stat. 119–1025.
111. 317 U.S. 111 (1942).
112. The Act was later amended to apply to only those firearms that had
“moved in” or that “otherwise affect[ed] interstate or foreign commerce.” See 18
U.S.C. § 922(q)(2)(A) (2012).

ly lies outside the scope of the federal commerce power, as the

Supreme Court held by a five-to-four vote in United States v.
Lopez.113 Notably, the justices who struck down the statute went
to great pains to reaffirm Wickard114 and to eviscerate Gibbons,
lest a broader rationale invalidate much New Deal progressive
legislation. In his concurring opinion, Justice Kennedy first re-
wrote Gibbons:
Chief Justice Marshall announced that the national authority
reaches “that commerce which concerns more States than
one” and that the commerce power “is complete in itself,
may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution.”115
Check this artful reformulation against Marshall’s original
passage in Gibbons, quoted in full above.116 Note in particular
the substitution of the word “reaches” for the original term “re-
stricted,” which carries the exact opposite meaning. It is there-
fore no mistake that Marshall’s notion of “the completely inte-
rior commerce of the state” disappears entirely from view in
this reformulation. Kennedy also ignores the phrase that ap-
pears just down the page, which notes that “though limited to
specified objects, [the Commerce Clause] is plenary as to those
objects . . . .”117 The Clause thus gave Congress pride of place
but only within its specified domain. The removal of these key
elements in Justice Kennedy’s reformulation of the original text
makes it wholly unintelligible how Chief Justice Marshall could
conclude that local inspection laws are beyond the limit the
Commerce Clause power, even if Congress could put in place a
comprehensive system of output regulation under the Agricul-
tural Adjustment Act.118
How does such blatant linguistic manipulation pass intellec-
tual muster? Only because it is driven by today’s expansive
progressive vision of the proper role of the national govern-

113. 514 U.S. 549 (1995).
114. For example, the Court attempted to distinguish Wickard on grounds that
Wickard applied to a broader scheme to regulate a commercial good (there, control
of the volume of wheat production), whereas the Gun-Free School Zones Act was
a “criminal statute that by its terms ha[d] nothing to do with ‘commerce’ or any
sort of economic enterprise.” See Lopez, 514 U.S. at 560–61.
115. Id. at 568 (Kennedy, J., concurring).
116. See supra text accompanying note 97.
117. Gibbons, 22 U.S. at 197.
118. Pub. L. No. 73–10, 48 Stat. 31.

ment, which shares all of its distaste for clear boundaries on the
jurisdictional issues that need them. Thus, in dismissing Kidd,
Justice Kennedy rejects mechanically “defining by semantic or
formalistic categories those activities that were commerce and
those that were not.”119 Horrors! But is that not exactly what
fidelity to constitutional text commands the Justices to do?
Thus, if the issue is not semantic, then meaning no longer mat-
ters, and so we may bypass the actual language of the Constitu-
tion and thereby usher in a massive expansion of the federal
power over internal activities within any given state.
Nor does Justice Kennedy give any explanation for why his
expansion of congressional power counts as a good thing, let
alone explain how far his reasoning should go. Moves like this
explain why today’s limitations on federal power typically
cover only a miniscule fraction of the total legislative land-
scape. Sadly, at no point does Kennedy appear to understand
why formal distinctions are so critical to the many jurisdiction-
al issues that arise in the law. It would hardly do to dismiss the
hard-edged physical boundaries between two states as formal-
istic, when it is imperative to determine which state exercises
power over which parcel of land. One might as well try to get
rid of boundaries in determining ownership of neighboring
plots of land, generating the same kind of confusion.120
Of course, in a system of federalism, physical boundaries
will not work because federalism imposes dual sovereignty
over the same territory. Nonetheless, it is critical for the success
of a federal system to devise a clear rule that allows both public
and private actors to sort out which functions belong to which
sovereign. Occasional overlap is inevitable, as when local gun-
fire blocks the movement of an interstate train. But in this con-
text, balancing tests between the federal and state interest al-
ways occur at the edges of every legal system. It is
commonplace, for example, to develop a system of reciprocal
negative easements under which the owner of each plot of land
cannot dig out his own land in ways that undermine the sup-
port for the land (but not any improvements thereon) of his

119. Lopez, 514 U.S. at 569 (Kennedy, J., concurring).
120. See generally Gary Libecap & Dean Lueck, The Demarcation of Land and the
Role of Coordinating Property Institutions, 119 J. POL. ECON. 426 (2011).

neighbors.121 These deviations from the hard-edged line typi-

cally lead to social improvement that is not otherwise obtained,
and are much more common in land cases in which units of
ownership are far smaller than a state’s entire territory. But in
principle the reciprocal benefits should be allowed in federal-
ism contexts when that mutual gain can be shown. Nonethe-
less, the possibility of some such improvement does not negate
the necessity to carefully cabin these exceptions lest they de-
stroy the whole structure.122 The notion of enumerated powers
made these cases the exception, not the rule, which is why the
modern synthesis that allows for the near universal concurrent
application of both federal and state law creates a far more
complicated structure, with great pressures on the doctrine of
federal preemption when dual controls are routinely imposed.
Indeed, the current formulation, which starts with a presump-
tion against preemption and then announces multiple excep-
tions,123 all uncertain in scope, has ushered in a nonstop juris-
prudential struggle.124
But what arguments could be made to justify this modern
departure from the original plan? The usual answer appeals
uncritically to the complexity of modern life. Thus, in answer-
ing this question in connection with the constitutionality of the
Affordable Care Act, 125 colloquially known as “Obamacare,”

121. For discussion, see generally Richard A. Epstein, Nuisance Law: Corrective
Justice and Its Utilitarian Constraints, 8 J. LEGAL STUD. 49 (1979).
122. On the relationship between clear boundary rules and the reasonableness
adjustments, see EPSTEIN, supra note 1, at 31–43.
123. The basic post-New Deal standard is found in Rice v. Santa Fe Railway, 331
U.S. 218, 230 (1946) (“Congress legislated here in a field which the States have
traditionally occupied. So we start with the assumption that the historic police
powers of the States were not to be superseded by the Federal Act unless that was
the clear and manifest purpose of Congress. Such a purpose may be evidenced in
several ways. The scheme of federal regulation may be so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement
it. Or the Act of Congress may touch a field in which the federal interest is so
dominant that the federal system will be assumed to preclude enforcement of
state laws on the same subject. Likewise, the object sought to be obtained by the
federal law and the character of obligations imposed by it may reveal the same
purpose. Or the state policy may produce a result inconsistent with the objective
of the federal statute.”) (citations omitted).
124. See generally FEDERAL PREEMPTION: STATES’ POWERS, NATIONAL INTERESTS
(R. Epstein & M. Greve eds., 2007).
125. Pub. L. No. 111-148, 124 Stat. 119–1025 (codified as amended in scattered
sections of 42 U.S.C.).

the conservative Senior Judge Laurence Silberman sustained

the program by appealing to current affairs: “the imperative
that Congress be free to forge national solutions to national
problems, no matter how local—or seemingly passive—their
individual origins.”126
Silberman’s claim encapsulates all the modern misunder-
standings about the sound organization of federalist systems by
wrongly assuming that the advantages of direct monopoly con-
trol on economic matters outweigh the benefits of competition
between states, which keeps alive the ability to counteract by
exit rights the consistent dangers of sovereign risk. Congress,
which is held in low repute,127 has only compounded the prob-
lem, and it is difficult to see how federal legislators can enact the
clear solution of reducing the sway the federal government
wields over the states. The extensive national power over agri-
culture and manufacturing, and indeed health care, has facilitat-
ed the growth of regulated monopolies—including the massive
cartel overseen by the Department of Agriculture—which consti-
tute a grave threat to overall economic prosperity. 128 Leaving
those activities to a fragmented system of state regulation has
the exact opposite effect. It hampers the adoption of monopoly
regulation by putting states in competition with each other. The
right of any business to enter or leave a state imposes cheap and
effective restraints on abusive legislation, even if any given
state’s own legislative policies leave much to be desired.
Yet states do pose a grave threat in any federal system if they
are constitutionally entitled to sever communication and trans-
portation across state lines, which is why exclusive national
regulation (subject to constraints against confiscation) is so crit-
ical to maintaining a strong free trade zone in the United States.
In this case, the usual appeal to “changed circumstances” for

126. Seven-Sky v. Holder, 661 F.3d 1, 20 (D.C. Cir. 2011).
127. See Rebecca Riffkin, 2014 U.S. Approval of Congress Remains Near All-Time
Low, GALLUP (Dec. 15, 2014), http://www.gallup.com/poll/180113/2014-approval-
congress-remains-near-time-low.aspx [https://perma.cc/ME26-EZ9W] (“Ameri-
cans’ job approval rating for Congress averaged 15% in 2014, close to the record-
low yearly average of 14% found last year. The highest yearly average was meas-
ured in 2001, at 56%. Yearly averages haven’t exceeded 20% in the past five years,
as well as in six of the past seven years.”).
128. For a discussion of the cartel risk, see KEITH HYLTON, ANTITRUST LAW:
ECONOMIC THEORY AND COMMON LAW EVOLUTION 68–71 (2003). For a discussion
of constitutional complications, see EPSTEIN, supra note 39, at 170–73.

expanded federal power falls flat on the very functionalist

grounds used to justify the broader federal power. Improved
networks of communication and transportation enlarge the
market for goods and services, reducing the risk of carteliza-
tion and thus the need for national regulation for activities un-
dertaken at the state level. But even here the progressive judi-
cial mindset is so committed to cartel formation that state gov-
governments often follow the lead of the national government
by offering complete protection to cartels that are organized
and maintained by state governments.129
It should be clear now that the defense of the more restricted
reading of the Commerce Clause as it pertains to cross-border
transactions and national cartels rests on more than a faithful
reading of the text. It also serves one means to limit abusive
private practices. To be sure, that approach does not stop the
state cartelization mentioned above. To address that issue, it is
necessary to turn to matters of takings and due process, which
deal with government regulation at both the state and the fed-
eral levels.
D. Takings of Private Property

A similar threat to the rule of law comes from the degradation
at the hands of the Supreme Court of the protection afforded to
owners of the manifold forms of private property. The Fifth
Amendment to the United States Constitution provides: “nor
shall private property be taken for public use, without just com-
pensation.”130 This command applies to all forms of property,
whether real or personal, physical or intellectual,131 not only to
the outright taking of property, but also to the taking of partial
interests in property, such as mortgages, covenants, easements,
leases, and mineral and air rights. Otherwise, the price of any

129. See generally Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365 (1991)
(upholding collusive activity between local zoning authorities and local advertis-
ers to restrict free billboards available to outsiders); Parker v. Brown, 317 U.S. 341
(1943) (upholding raisin cartel that exported out of state).
130. U.S. CONST. amend. V.
131. See Horne v. United States, 135 S. Ct. 2419, 2427 (2015) (“Nothing in this
history suggests that personal property was any less protected against physical
appropriation than real property . . . . [A patented invention] ‘cannot be appropri-
ated or used by the government itself, without just compensation, any more than
it can appropriate or use without compensation land which has been patented to a
private purchaser.’”) (quoting James v. Campbell, 104 U.S. 356, 358 (1882)).

economically sensible division of property is the loss of rights

against the state. These partial interests are in common use be-
cause the permanent nature of real estate allows for its conven-
ient division into multiple interests just mentioned.
In modern times the two radically different readings of the
Takings Clause have been reflected in the following two quota-
tions. First, in Armstrong v. United States, 132 a 1960 Supreme
Court decision, Justice Hugo Black gave it a strict and forceful
application in a case that dealt with the taking of a partial in-
terest in private property, a ship’s lien:
The Fifth Amendment’s guarantee that private property
shall not be taken for a public use without just compensation
was designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and jus-
tice, should be borne by the public as a whole.133
Some eighteen years later in Penn Central Transportation Co. v.
City of New York,134 Justice William Brennan muddied the wa-
ters when he denied that any bright-line rule could organize
takings law:
While this Court has recognized that the “Fifth Amend-
ment’s guarantee . . . [is] designed to bar Government from
forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a
whole,” [citing Armstrong], this Court, quite simply, has
been unable to develop any “set formula” for determining
when “justice and fairness” require that economic injuries
caused by public action be compensated by the government,
rather than remain disproportionately concentrated on a few
persons. Indeed, we have frequently observed that whether
a particular restriction will be rendered invalid by the gov-
ernment’s failure to pay for any losses proximately caused
by it depends largely “upon the particular circumstances [in
that] case.”
In engaging in these essentially ad hoc, factual inquiries,
the Court’s decisions have identified several factors that
have particular significance. The economic impact of the
regulation on the claimant and, particularly, the extent to
which the regulation has interfered with distinct investment-
backed expectations are, of course, relevant considerations.

132. 364 U.S. 40 (1960).
133. Id. at 49.
134. 438 U.S. 104 (1978).

So, too, is the character of the governmental action. A “tak-

ing” may more readily be found when the interference with
property can be characterized as a physical invasion by gov-
ernment than when interference arises from some public
program adjusting the benefits and burdens of economic life
to promote the common good.135
It is hard to overstate the amount of sheer intellectual and
practical confusion introduced by Justice Brennan’s appeal to
ad hoc rules. To see why, it is instructive to note first how the
two cases arose. Armstrong started with a prosaic dispute when
a subcontractor placed a lien (as security for payment) against a
naval vessel berthed in Maine waters after his contractor had
defaulted on a contractual obligation. 136 These kinds of liens
against property improved by the lienholder’s effort are per-
fectly commonplace and are intended to insure that the boat
owner does not receive unjust benefits from uncompensated
work done on its property.137 The United States dissolved the
lien by the simple expedient of sailing the ship out of Maine
waters.138 The last sentence of Justice Black’s opinion was the
affirmation of the proposition that if the boat repairs were for
the benefit of the nation, the unfortunate subcontractor should
not have to bear a huge fraction of the cost of repair relative to
his tiny share of social benefits.139 This rule has two great ad-
vantages: It promotes fairness among citizens and prevents the
government from taking advantage of honest contractors. It
does the first by ensuring that one subcontractor who receives
only his pro rata share of the protection that the ships provide
to the nation will not be required to bear a disproportionate
part of the cost. It does the second by ensuring that the gov-
ernment will not overbuild by forcing the costs of construction
on innocent parties who have contributed to its success. The

135. Id. at 123–24 (citations omitted).
136. See Armstrong, 364 U.S. at 41.
137. A mechanic’s lien is: “A guarantee of payment to builders, contractors and
construction firms that build or repair structures. Mechanic’s liens also extend to
suppliers of materials and subcontractors and cover building repairs as well. The
lien ensures that the workmen are paid before anyone else in the event of liquida-
tion. A mechanic’s lien is also known as ‘artisans’ liens’ or ‘materialmen’s liens.’”
Mechanic’s Lien: Definition of “Mechanic’s Lien,” INVESTOPEDIA, http://www.inv
estopedia.com/terms/m/mechanics-lien.asp [https://perma.cc/MZ7Z-TUMH].
138. See Armstrong, 364 U.S. at 41.
139. See id. at 49.

key analytical assumption is that the protection afforded to

property covers all divided interests that are created by volun-
tary agreements from outright ownership of the whole.
Penn Central raised in different guise the identical question in
Armstrong, namely the proper treatment of divided interests in
a single piece of property. New York City imposed a landmark
preservation law that prohibited Penn Central from erecting a
proposed Breuer tower on top of the old Penn Central Termi-
nal.140 No one doubts that denying any use of air rights is, if a
taking at all, one that is for a public use by preserving open
space and vistas. But the question in Penn Central was whether
the City had to pay for the loss of the air rights attributable to
that decision.141 Under New York law, air rights (like construc-
tion liens) are a partial interest in property that can be bought,
sold, leased, or mortgaged by their owner.142 This state law cre-
ation can function only because its rules allow for the creation
and protection of air rights, even though they constitute but a
fractional interest of the whole. The question, therefore, was
whether the costs of altering the New York skyline should be
paid for by the City as a whole or by the landowner. The an-
swer to that question is that the public good should be financed
by the public, for the same reason given in Armstrong: it is un-
fair to make one person bear those costs, and inefficient to boot
because it encourages over-condemnation by allowing the gov-
ernment to ignore the social costs of its actions. No one doubts
that the government can still maintain control over the air
rights if the public thinks that it is worth the cost.
Justice Brennan was determined, however, to let the program
prosper without forcing the government to pay any compensa-
tion. So he muddied the legal waters by introducing supposed
ambiguity into the standard accounts of property law that are

140. See Penn Central, 438 U.S. at 116–17.
141. See id. at 130.
142. For a general discussion of the protection of air rights, see Troy A. Rule,
Airspace and the Takings Clause, 90 WASH. L. REV. 421, 425–28 (2012). The modern
law tends to limit the height to which these air rights attach so that they do not
block air transportation. But in the area of effective occupation, these property
rights have all the attributes of ownership, lest land be reduced to a two-
dimensional object. See also Marc A. Landis & Lonica L. Smith, Airspace Conveyance
Policy Changes, N.Y.L.J. (June 22, 2009), available at
http://www.phillipsnizer.com/pdf/Article-NYLJ-AirspaceConvyPolChgs-ML&LS-
6-22-09.pdf [https://perma.cc/KFL9-TRDB].

nowhere reflected in state legal doctrine. He first noted that the

takings question had to be evaluated by the parcel “as a whole,”
which necessarily undercut the protection of partial interests an-
nounced in Armstrong. With that incorrect ipse dixit, the former
clear rule about the taking of a partial interest became a set of
“ad hoc” adjustments that depend on a wide range of circum-
stances, none of which have any textual warrant. To this day, it
is not clear whether it is a physical taking for the government to
keep someone else from occupying Penn Central’s air rights, or
whether it matters if this government action is downgraded to a
“regulatory taking.” This is a new ad hoc category that makes it
hard to classify what level of protection is given not only to air
rights, but also to easements and restrictive covenants, both of
which count as partial property interests embedded in the larger
whole that can be used, developed, or divided by the owner.143
There is much in the takings literature that supports comprehen-
sive government rights to regulate land, by noting extensive co-
lonial practices of regulation.144 But these accounts never ask the
analytical question of which among the various forms of regula-
tion would be protected by an analysis of the Takings Clause
that accounts for both police power justifications for land use
restrictions and for the common situation in which regulations
provide benefits to the parties that are sufficient to count as full,
implicit-in-kind compensation. 145 Nonetheless, to this day, no

143. For development of this position, see EPSTEIN, supra note 1, at 76–96. See
generally Richard A. Epstein, The Takings Clause and Partial Interests in Land: On
Sharp Boundaries and Continuous Distributions, 78 BROOK. L. REV. 589 (2013); Rich-
ard A. Epstein, Bundle-of-Rights Theory as a Bulwark Against Statist Conceptions of
Private Property, 8 ECON. J. WATCH 223 (2011).
144. The literature on regulatory takings is extensive. Much of the modern work
on the topic dates from Frank I. Michelman, Property, Utility, and Fairness: Com-
ments on the Ethical Foundations of “Just Compensation” Law, 80 HARV. L. REV. 1165
(1967). See also John F. Hart, Land Use Law in the Early Republic and the Original
Meaning of the Takings Clause, 94 NW. U. L. REV. 1099, 1107–31 (2000); John F. Hart,
Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L.
REV. 1252 (1996); William Michael Treanor, The Original Understanding of the Tak-
ings Clause and the Political Process, 95 COLUM. L. REV. 782, 785–92 (1995). On the
other side, see, for example, Eric R. Claeys, Takings, Regulations, and Natural Prop-
erty Rights, 88 CORNELL L. REV. 1549, 1553 (2003); Andrew S. Gold, Regulatory Tak-
ings and Original Intent: The Direct, Physical Takings Thesis ‘‘Goes Too Far”, 49 AM. U.
L. REV. 181, 241 (1999); Kris W. Kobach, The Origins of Regulatory Takings: Setting
the Record Straight, 1996 UTAH L. REV. 1211, 1213.
145. I develop the complete theory in RICHARD A. EPSTEIN, TAKINGS: PRIVATE
PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).

champion of the modern position can offer a coherent explana-

tion of the phrase “investment-backed expectations” in the con-
text of real property transactions. It is well understood that peo-
ple acquire property for use and profit, and it is therefore hard to
use this test to divide those acquisitions that should be protected
from those that should not.
Nonetheless, Justice Brennan introduces this term, which has
no textual warrant, in a blithe fashion that upsets every known
technique for the valuation of assets, all of which consist of tak-
ing all of the positive elements of any bundle of rights, figuring
out the value of each of them separately and then summing
them up, taking care to worry about any possible interactive
feature dealing with individual rights. With respect to real es-
tate, this approach requires at least two forms of classification.
The first is an estimation of the fair rental or use value for each
period of existing assets. The second consists of determining
the option value associated with other rights in the bundle—for
example, the rights for further development—that have posi-
tive value which could be realized in trade today or in use at
some future time. Under this technique, every undivided inter-
est in the bundle is given its full weight. The entire system of
property rights would collapse, for example, if mortgages were
valued solely with the first annual stream of payments, or in-
deed with all payments if the various options, including pre-
payment options, were excluded from the mix. No private sys-
tem of valuation seeks to do this.
Justice Brennan’s use of the term “investment-backed” ex-
pectations has only one function: to allow the state to value all
future uses at zero in considering its own initiatives. Thus, he
writes:
[T]he New York City law does not interfere in any way with
the present uses of the Terminal. Its designation as a land-
mark not only permits but contemplates that appellants may
continue to use the property precisely as it has been used for
the past 65 years: as a railroad terminal containing office
space and concessions. So the law does not interfere with
what must be regarded as Penn Central’s primary expecta-
tion concerning the use of the parcel. More importantly, on
this record, we must regard the New York City law as per-

mitting Penn Central not only to profit from the Terminal

but also to obtain a “reasonable return” on its investment.146
This statement treats the option value for future uses at zero
for the purposes of takings law, even though it is positive for
private law. By severing the constitutional definition of proper-
ty from the private law definition of the same subject, he gives
the state a degree of freedom that it could never have under a
consistent set of definitions. Worse still, he just flatly asserts—
in the passive voice, no less—that Penn Central’s “primary ex-
pectation” must be the continued operation of the terminal,
without explanation as to why so-called “secondary expecta-
tions” carry with them a zero value. No one could doubt that
any commercial enterprise attaches a positive value to all its
assets, which could easily be established if the issue was treat-
ed as one of fact, on which testimony could be taken, instead of
one of constitutional faith, which is regarded as so evident that
no testimony is needed at all. Indeed, one benefit of the system
of the security of possession is that Penn Central need not en-
gage in premature development of any asset to protect it from
government confiscation. The entire opinion is in intellectual
shambles for the way in which it gives an ad hoc and incorrect
meaning to the term “private property” under the Constitution.
Justice Brennan does no better in his cryptic reference to pub-
lic programs “adjusting the benefits and burdens of public”147
life. He referred to a then-recent 1976 decision written by Jus-
tice Thurgood Marshall in Usery v. Turner Elkhorn Mining Co.148
that approved a retroactive imposition of a tax on mining com-
panies to fund a compensation program for miners and their
survivors who sustained, as many did, death or total disability
from pneumoconiosis tied to their employment in the coal
mines. The rationale was pure redistribution by spreading, af-
ter the fact, these costs to the firms who employed the miners,
even if they had complied with all the safety laws then in ef-
fect.149 Justice Marshall said as much when he noted: “But our
cases are clear that legislation readjusting rights and burdens is
not unlawful solely because it upsets otherwise settled expecta-

146. Penn Central, 438 U.S. at 136.
147. Id. at 124.
148. 428 U.S. 1 (1976).
149. For criticism, see Richard A. Epstein, Toward a Revitalization of the Contract
Clause, 51 U. CHI. L. REV. 703, 721 (1984).

tions.”150 What Lon Fuller had concluded was a key component

of the rule of law—a set of rules that are known, intelligible,
internally consistent, and prospective in application—was
brushed aside on the ground that everyone could “expect”
these foreseeable abuses to happen—which is why constitu-
tional guarantees are imposed in the first place.
Both Penn Central and Turner Elkhorn flout the rule of law in
the way that Fuller defines it. Penn Central puts in place an un-
intelligible scheme of regulation that gives no clear guidance to
any rule, while upsetting the normal expectations that individ-
uals have with respect to their own property. Turner Elkhorn
runs roughshod over the prohibition against retroactive legisla-
tion. Right now, land use restrictions in the United States are
always tested against Justice Brennan’s slippery three-part
formula, as the decision has been cited and applied in around
9,150 cases as of May 26, 2016,151 which is to say in just about
any regulatory takings case today. It is now rare to rebuff state
and local governments for their ad hoc decisions to grant or
deny building permits, or to grant them under onerous condi-
tions, without legal repercussions.152 The politics of zoning cas-
es are intense, precisely because the unfettered set of govern-
ment options leaves running room for all parties to make their
case, and to do so free of charge. Similarly, in cases like Turner
Elkhorn, it is far more acceptable, but not free from doubt, to
fund special schemes out of general revenues, but it is mani-
festly incorrect to impose those losses uniquely on prior actors
whose conduct was legal when undertaken in light of the con-
cern with settled expectations—which if it can be cast aside in
one case, can be ignored in all.
IV. THE LARGER PICTURE
The four areas of constitutional law that I have discussed in

this Article appear to address disparate topics. But their re-
sponses show a hidden unity, for it is no accident that the con-

150. Usery, 428 U.S. at 16.
151. See Penn Cent. Transp. Co. v. City of New York, GOOGLE SCHOLAR (last
visited May 26, 2016).
152. See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (applying Penn
Central); Cormier v. Cty. of San Luis Obispo, 207 Cal. Rptr. 880 (Cal. Ct. App.
1984) (showing extreme deference to local zoning board decisions).

stant refrain of progressive thought works on all sides of these

issues. With respect to individual liberties, the progressive sus-
picion of markets leads to a truncation of property and contract
rights and to a willingness to tolerate—and sometimes encour-
age—retroactive legislation. But at the same time, in nonmarket
contexts, such as crime and abortion, progressive forces work in
the opposite direction. Thus, rights on abortion are no longer
covered by the moral head of the police power (which historical-
ly afforded the state extensive discretion in regulating matters of
sexuality). At the same time, the entire set of criminal punish-
ments is constitutionalized by an over-reading of the Eighth
Amendment’s prohibition against cruel and unusual punish-
ments. This shift moves from huge deference to legislative forces
to a constant scrutiny of the laws that limit these behaviors,
without any strong theory as to why that should be done. In the
abortion cases, there is little regard anymore for the protection of
innocent life, which lay at the heart of the earlier protections.
The shift on these questions has been so profound that it hardly
matters that the decided cases are supported by neither constitu-
tional text, nor constitutional structure, nor constitutional histo-
ry. In these instances, the withdrawal of general social control
should be regarded with some uneasiness.
On the matters of economic liberty and private property, there
is a strong normative theory that favors competition over mo-
nopoly, by showing its superior welfare consequences, but these
powerful intellectual regularities are routinely ignored by pro-
gressive constitutional theory. The major economic losses that
come from the superimposition of the newer regulatory appa-
ratus show that the disregard for the close connection between
property rights and the rule of law does not come cheap, given
the distortions in economic behavior outlined above. At first
blush it often appears that the expansion of federal power and
the decline in the protection of property rights and economic
liberties are unrelated developments. But in fact the close histor-
ical connection, most notably in the Supreme Court’s 1936–1937
term, is no accident. Both of these developments paved the way
for larger government control over the economy and a further
attack on the competitive market system in areas where it func-
tioned well. The test of any system that respects the rule of law is
whether it imposes restrictions on the ability of government to
resort solely to political influence to determine how to allocate

the costs and benefits of various government programs. The doc-

trinal positions taken in early Supreme Court cases did far better
in trying to adopt fixed and known rules to prevent that abuse of
any form of government discretion, which in turn has this desir-
able social consequence, by giving strong definition of private
rights that make it difficult for any party, either public or pri-
vate, to game the system.
There are good reasons why the size of government is con-
strained through the democratic process but only if property
rights receive explicit and strong constitutional protection. In
order to coerce, the dominant government faction has to per-
suade the public at large to fund its projects through taxation.
All these expenses are on the books, so public deliberation is
now improved by full information and sound financial incen-
tives. In cases where the benefits are substantial, it is usually
possible to gain public support for them. The rule of law, how-
ever, is equally important in ensuring that some transactions
do not take place precisely because the public at large is unwill-
ing to make the direct appropriation for unwise projects that
cost more than they are worth. At this point, the rigorous ap-
plication of clear rules, undiluted by “ad hoc” accommoda-
tions, helps protect against wasteful public initiatives for which
there is no public support.
It therefore turns out that faithful adherence to the rule of law
is not just an abstract ideal. In practice, it also has multiple vir-
tues. In areas where there is no obvious consensus, it encourages
democratic deliberation by keeping the courts on the sidelines
when they have no clear textual or theoretical reasons for inter-
vention. In these contexts, overreaching undermines judicial le-
gitimacy. But by the same token, sensible judicial intervention
on the economic issues does produce positive social results. It
increases the credibility of government with the public at large;
it prevents the state from using artifice to pick out individual
citizens or firms for disproportionate burdens; it disciplines the
political process so the government makes wiser decisions about
the allocation of public funds; and it improves the deliberative
process that is otherwise exposed to factional intrigues led by
actors seeking to avoid costs and garner benefits.
Modern critics of classical liberal theory attack it on multiple
grounds, none of which are persuasive. The first line of attack is
to explain why the very terms by which the theory is expressed

are subject to deep ambiguity. But that critique is ignored when

talking about the standard terms used by the administrative
state that speak of public interest convenience and necessity, of
undue burdens and of reasonable accommodations. These terms
too contain some slack, but it would be a mistake to attack them
on the ground that they are wholly unintelligible. The correct
ground of attack is that these terms all treat balancing tests as the
initial line of analysis to the exclusion of all bright-line rules. The
difficulty in stating and estimating these variables is greater by
far here than it is in the usual context under a negligence stand-
ard that has no use for the bright-line rules of a strict liability
system.153 It is not that the bright-line rules work in all cases. In
general they are not sufficient to deal with those cases in which
one party deviates from the bright-line rule, thereby forcing rea-
sonable accommodations to be made by any innocent party who
has notice of the deviation and an opportunity to correct the sit-
uation. 154 But it is quite different to build in reasonableness
standards at the ground floor such that there are no clear cases
of what is in and out of bounds. Just think of how sporting con-
tests would look if boundary rules were replaced by any form of
a reasonableness standard drawn from the law of negligence. Of
course in some few cases—for instance, pushing a receiver out of
bounds before he can land in bounds—adjustments are made,
but the vast majority of potential disputes are resolved by these
mechanical rules.
The use of these mechanical rules is important because it re-
duces the informational stress on both private parties and pub-
lic officials. It is easier to be rational in a system that is domi-
nated by black and white lines than it is to be rational when
multiple variables are in the air at the same time. Of course,
people are not rational, at least not all the time, and they have
biases and prejudices and make all sorts of mistakes. But what
the modern critics of classical liberal theory miss is that the ro-
bust nature of the traditional theory lies in the fact that it offers
better protection through property rights and decentralized
processes than any modern theory that trusts all its powers in

153. See, e.g., Mario J. Rizzo, Law Amid Flux: The Economics of Negligence and Strict
Liability in Tort, 9 J. LEGAL STUD. 291 (1980).
154. For the economics, see generally Donald Wittman, Optimal Pricing of Se-
quential Inputs: Last Clear Chance, Mitigation of Damages, and Related Doctrines in the
Law, 10 J. LEGAL STUD. 65 (1981).

public officials who equally suffer from all these infirmities,

while being burdened by the greater challenge of taking upon
their own imperfect persons the Herculean task of keeping oth-
ers from their errors.
None of this needs to be if we return to the fundamentals,
which recognize that public law must be built on private law
conceptions of property and contract to retain its coherence. That
simple insight in turn rests on the belief that the faithful adher-
ence to clear language and clear rules offers the central bulwark
of individual liberty against the political struggle and factional
discord so common in modern times. It is an inherently unstable
political situation if people can obtain rights without cost
through the political system that they would otherwise have to
purchase in the private market. Yet that is what happens when
political leaders can, through the zoning process, impose restric-
tive covenants on the lands of their neighbors without having to
pay for the change. The political dynamic of regulatory takings
is identical to that of physical takings. The removal of a price
system in the public arena stimulates efforts to acquire rights
through regulation without compensation. Over and over again
it has to be stressed that the purpose of the just compensation is
in part to block those transactions in which it is not worthwhile
to acquire rights for public use. The zero compensation require-
ments under systems of weak property protection stimulate ex-
cessive political activities. It is only if traditional principles gov-
erning property rights are applied consciously that we can hope
to regain the sense of the proper interface between political and
judicial action. But that will not happen so long as judges and
scholars continue to deny the intellectual coherence of the tradi-
tional rules, as in Penn Central. Having wrong theories on all
these questions erodes the efficiency of government and the con-
fidence of the public at large in its legal and political institutions.
That is a high price to pay for the effort to achieve some short-
term gains by questionable intellectual constructs and constitu-
tional arguments.

39 3 Epstein F

Uploaded by

Copyright:

Available Formats

39 3 Epstein F

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

39 3 Epstein F

Uploaded by

Copyright:

Available Formats

LINGUISTIC RELATIVISM AND THE

Nobody today on any side of the political spectrum opposes

ence is a minimum condition for the rule of law. Yet, as will

should be regarded as coercive both in competitive and mo-

coercive behavior to the victims of coercion is one dire conse-

does not exclude duress. It is the characteristic of duress

selves with the inevitable disputes that arise at the margins of

I. THE EVOLUTION OF THE MODERNIST VIEW

As a matter of intellectual history, why did this profound

arguments to attack the classical liberal synthesis of property,

deal in a competitive market, he establishes a false equivalence

II. SHORTCOMINGS OF THE MODERNIST VIEW

So why then the legal relativism—that is, some notion that

Federal Employer Liability Act, under which neither contribu-

sirability the original understanding should have in a world of

that must be addressed, but it hardly follows that modern

these changes are not a result of changed social circumstances,

to at least a 100-fold increase in machine tool cases, which in

III. HOW THE SUPREME COURT’S LINGUISTIC SKEPTICISM

In many modern disputes, the provisions of the Constitution

privilege or immunities converts the provision for a negative right

through, or to reside in any other state, for purposes of trade,

purports to be scientific, is only “a rigid scheme of deductions

A. The Abortion Cases

than a century.53 “By the end of the 1950’s, a large majority of

ner—which struck down a ten-hour maximum hours law for

To be sure, the Millian principle has serious difficulties when

B. Cruel and Unusual Punishments

Nonetheless, it is an achievement of modern jurisprudence to

support peaked at 80% in 1994, but it has gradually declined

form Code of Military Justice to provide for death in those cas-

strumentality.92 The correct mode of interpretive incremental-

and the internal order, improvement, and prosperity of the

covered the shipment of goods and the transportation of per-

plicit purpose of protecting the sales of coal mined by union

ly lies outside the scope of the federal commerce power, as the

neighbors.121 These deviations from the hard-edged line typi-

the conservative Senior Judge Laurence Silberman sustained

expanded federal power falls flat on the very functionalist

D. Takings of Private Property

economically sensible division of property is the loss of rights

So, too, is the character of the governmental action. A “tak-

key analytical assumption is that the protection afforded to

nowhere reflected in state legal doctrine. He first noted that the

champion of the modern position can offer a coherent explana-

mitting Penn Central not only to profit from the Terminal

tions.”150 What Lon Fuller had concluded was a key component

IV. THE LARGER PICTURE

The four areas of constitutional law that I have discussed in

stant refrain of progressive thought works on all sides of these

the costs and benefits of various government programs. The doc-

are subject to deep ambiguity. But that critique is ignored when

public officials who equally suffer from all these infirmities,

You might also like