How Progressives Rewrote the Constitution by Richard A. Epstein
In the introduction to this elegantly reasoned book, University of Chicago Law School professor Richard Epstein prints a small chart showing a steady decline in child labor in the United States between 1900 and 1930. While discussing an array of cases (and occasionally summarizing them a bit too quickly for non-lawyers) Epstein refers back to the chart at regular intervals. It is the book's touchstone. Along the way, he notes other findings for the same era such as reductions in the average number of hours worked, lengthening average lifespans, and increasing wages to make a simple point: Progressives did not have to rewrite the Constitution to solve the social problems of their day. The early 20th-century Supreme Court, with its limited conception of police power and broad conception of liberty, was neither narrow-minded nor simplistic. Economic and technological change did not render its constitutionalism obsolete; Progressive jurists and lawyers simply assumed that it did. "The older conceptual scheme did not collapse of its own weight. All that really happened was that several justices lost faith in it, without being able to show where it broke down." The result was unfortunate. Under pressure from the New Deal, the Court allowed more restrictions on economic and personal liberty. Since then, they have changed course, allowing ever more scope for personal liberty, while holding the line on economic liberty. Constitutionally speaking, the result is mush. As a whole, the book provides a sound introduction to the case against legal Progressivism and for the Constitution. Like other books on the Progressives it raises an interesting question: why were they able to fool so many people for such a long time?
The Henry Salvatori Center
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This article appeared in the Summer 2006 issue of the Claremont Review of Books