How Progressives Rewrote the Constitution [Paperback]

Richard A. Epstein (Author)

Book Description

Publication Date: May 4, 2007 | ISBN-10: 1933995068 | ISBN-13: 978-1933995069

How Progressives Rewrote the Constitution explores the fundamental shift in political and economic thought of the Progressive Era and how the Supreme Court was used to transform the Constitution into one that reflected the ideas of their own time, while undermining America's founding principles. Epstein examines key decisions to demonstrate how Progressives attacked much of the legal precedent and eventually weakened the Court's thinking concerning limited federal powers and the protection of individual rights. Progressives on the Court undermined basic economic principles of freedom and competition, paving the way for the modern redistributive and regulatory state. As Epstein writes, the Progressives, were determined that their vision of the managed economy should take precedent in all areas of life. Although they purported to have great sophistication on economic and social matters, their understanding was primitive. The Progressives and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures. How Progressives Rewrote the Constitution shows that our modern constitutional law, fashioned largely by the New Deal Court in the late 1930s, has its roots in Progressivism, not in our country's founding principles, and how so many of those ideas, however discredited by more recent economic thought, still shape the Court's decisions.

Editorial Reviews

From the Back Cover

"Epstein is one of America's most brilliant scholars. In this little book, he is at the top of his form."
--Alan Bock, The Orange County Register

"Epstein provides an astonishingly detailed account of the reformation of the US Constitution in surprisingly few pages. He highlights every major court case that altered the original ideals of the Constitution ever so slightly, but that turned out in the end to land America drastically far from the sound political ideals with which it had begun. Using intricate logic he lays out a strong argument against the Progressives and an equally strong argument for the Old Court. For Americans, this book is a mandatory read"
Economic Affairs

"Just as we are being berated by his Chicago colleague Cass Sunstein for not completing FDR's social-democratic revolution by embracing a New Deal for speech and constitutionalizing welfare rights, here comes Richard Epstein inviting us to wonder whether the New Deal enterprise and the Progressive movement that preceeded it were not all a dreadful mistake. This is a challenging and amusing book -- Richard Epstein at the top of his game."
Charles Fried, Professor of Law, Harvard University, Former U.S. Solicitor General

"Epstein clearly explains how the Progressive prescription for curing society's shortcomings has caused untold harm to our polity. We live with their legal legacy today, which hamstrings the economy, intrudes unnecessarily into our private affairs and makes our society the most litigious on earth."
Patrick Barron, The Bulletin

About the Author

Richard A. Epstein, professor of law at the University of Chicago, is an expert on numerous areas of the law, including property, torts, land use, civil procedure, contract law, workers' compensation, and Roman law. He is the author of Takings: Private Property and Eminent Domain and Simple Rules for a Complex World.

Product Details

• Paperback: 156 pages
• Publisher: Cato Institute (May 4, 2007)
• Language: English
• ISBN-10: 1933995068
• ISBN-13: 978-1933995069
• Product Dimensions: 6.9 x 4.5 x 0.5 inches
• Shipping Weight: 4.8 ounces (View shipping rates and policies)
• Average Customer Review: 3.8 out of 5 stars  See all reviews (10 customer reviews)
• Amazon Best Sellers Rank: #287,433 in Books (See Top 100 in Books)

More About the Author

Discover books, learn about writers, read author blogs, and more.

Customer Reviews

Most Helpful Customer Reviews

32 of 34 people found the following review helpful:

3.0 out of 5 stars Fell short, May 22, 2009

By 

MT57 (USA) - See all my reviews

Amazon Verified Purchase

This review is from: How Progressives Rewrote the Constitution (Paperback)

I had not read Prof. Epstein's work before but had high hopes. I was somewhat disappointed. First, the title is misleading. You won't learn much about "how" progressives re-wrote the Constitution. A title that better captures the thrust of the book would be "Progressives rewrote the Constitution and that was stupid." Second, this is a short book and although that is generally a good thing, a lot gets left out and his argument suffers for it. What you get mainly is (a) a history of the interpretation of the Commerce Clause, and (b) a discussion of free market economic theory. What was most noticeably lacking was proof of how the author's strong preference for the latter ties back to the Constitution. For example, he notes (pgs 22-23) that the Constitution predates the emergence of laissez faire economic theory, which would tend to suggest it is not Constitutionally required as the title appears to imply. Similarly, his discussion of Lochner (p.48) is not only absurdly brief in relation to the subject of the book (only three sentences) but shockingly off center, as he never discusses the "substantive due process" doctrine, which is at the heart of the case, at all. Finally, he does little to address the separation of powers issue that has to be addressed in arguing whether courts should invalidate legislation. His only comment is that courts are competent to do economic analysis, which ignores the political question of whether, in a representative democracy, unelected agents, however competent, should be so empowered - the very conservative concern about "activist judges". I was left with the feeling that his answer would be, "yes, they should be so empowered if they ruled as I think they should" which isn't much of a Constitutional theory. In the main, his arguments appear to be based on economic theory and not Constitutional.

At page 100, he begins a more impressive and more timely discussion of how the Progressive era's justification for controls on corporations' contract-making inevitably supplied a rationale for controlling individual's homes, use of property, school choice, use of foreign language and so on, and shows among other things how that rationale was used to uphold laws that delayed greater economic freedom and prominence for women. That section was pretty good and I recommend it.

69 of 80 people found the following review helpful:

5.0 out of 5 stars An Excellent Review of Judicial History, May 21, 2006

By 

Ralph Bradley (Washington, DC) - See all my reviews
(REAL NAME)   

This review is from: How Progressives Rewrote the Constitution (Hardcover)

Because the political philosophy of our fathers is rooted in a combination of Lockean and Hobbesian philosophy, the initial Federal government's role was basically defense, foreign policy, and refereeing interstate commerce. It was not to provide for needs such as retirement, health, food assistance, farm support, or recreation. Yet, today the federal government is involved in all these activities, and over time, individual property rights have been highly compromised, and personal responsibility is no longer an legally binding.

This book gives us a judicial history of the key court cases that lead to this outcome. It then critiques the logical flaws of the progressive thinking. It does not explain how the key judges who decided these key court cases got to the bench. Therefore, one should not and cannot rely solely on this book to give one a complete understanding how political power shifted in this country so that the vision of our founders could be destroyed. It is perhaps good that this book is not comprehensive because it would be much longer and we can use our time more efficiently by first examining the court decisions and then later one try to figure out how the court changed its guiding philosophy.

I recommend this book to those who are trying to restore liberal principals to American Federalism. (Please note that liberal here begins with a small l.

33 of 40 people found the following review helpful:

4.0 out of 5 stars Could've Been a Home Run..., May 28, 2007

By 

The Stranger "Meursault" (Arlington, VA) - See all my reviews
(VINE VOICE)   

This review is from: How Progressives Rewrote the Constitution (Hardcover)

Having extensively studied Con Law, I was already aware of the "rewriting" of our constitution. There's an absolute gold mine of case law to support this notion. I feel like Epstein didn't make the best use of this treasure trove however. At times it seemed almost like Epstein was going easy on the Supreme Court.

I think he focuses too heavily on economic theory and not enough on constitutional originalism. The title of his book is "How Progressives Rewrote the Constitution" but sometimes the content seemed more like "Why Progressive Economic Theory is Worse Than Classic Liberalism." He tries to reconcile this discrepancy by asserting that the constitution IS classically liberal. He doesn't make much of an effort, however, to sell this point. Of course, realistically this book is most likely just preaching to the choir that bought that premise long ago. I still felt he needed to (and having read other pieces from him and having seen him speak I have no doubt he could have) expounded on this foundation of his argument.

As a random complaint, he spends a lot of time distinguishing libertarians from classic liberals. Given the greater conflict at hand (i.e. liberalism vs. progressivism), I found it odd that he would devote so much space to this topic.