Customer Reviews

How Progressives Rewrote the Constitution

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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.

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.

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.

Enjoyed this book which carefully lays out how the United States through judicial advocacy and legislation carefully eroded individual rights in favor of a much stronger more progressive federal government. The slippery slope of Federal oversight which has so many concerned today with the takeover of insurance companies, auto industry, and healthcare started decades ago and should be alarming to anyone who values Jeffersonian ideology. The argument of state rights vs federal and individual rights vs that of society is one that is being played out before our eyes. If you value individual liberty and fear progressive federal mandates this is a good read and very enlightening

Professor Epstein hit another one out of the park with this book. He firmly and clearly gives a good, but brief overview of the time periods in which the Constitution completely departed from its origional intent and boundaries for the destructive benevolence of the Supreme Court.

He does a good job at differentiating between what is classical liberalism and what is staunch libertarianism. He laid out the facts showing that for example, child labor sharply fell from 1900-1930 while incomes sharply increased during the same time period, of which was all before any child labor laws or wage laws even existed. He has the intelligence to really show how "turning back the clock" by re-opening old wounds is what we should do not only for our benefit, but also to get back to following our governing document, the Constitution.

His work is so well informed and argued that it is unfortunate not enough people know who he is.

I read this book in about four hours today. I realy agree with his definision of classical liberalism that is government sets up a framework of secuity in which people gain more freedoms through security. There is diferation between progressive liberal and liberitarian. I would hope more people would read this book to understand how many liberties have been lost. There are so many good points on how the progressive way of thinking has not been enlightened or successful.

We as a country are still in the progressive mindset of the courts and we have not so much changed the rulings from progressive courts but overcome them.

This book is not highly parizant or overly critical and should be read by people who migh not agree with the premise of the book that the constution has had significat changes and meaning have been changed of kep part over the last 70 or so years. I would higly encourage anyone who is interested in government or politics to read this book. I would recoment that those on the left atleast consider the arguments put forth and the results that are documented here.

This is an amazing synthesis of the history of the Judicial revolution, how and why it happened, and the major players and cases involved. I highly recommend it, especially to the first-year law student in connection with their Constitutional Law studies.

I have not read the entire book yet, but the beginning is very informative. The US Constitution is a unique work, and we Americans need to take time to revisit it. The book appears to explain how we recent generations of Americans have changed a very important document, our Constitution, and not for the good.

I'm not a lawyer (and don't want to be). Therefore, this book is written in language I could not easily understand. I never finished it.

Epstein overlooks the fact that the "Declaration of Independence," and the Constitution, were the triumph of PROGRESSIVE values over the CONSERVATIVE.

It was the Conservatives of the day who opposed both, in defense of the status quo. Having lost that battle, they now endeavor to pretend to be defenders of the Constitution. The rewriting has not been of the Constitution, but, as its enemies hate enforcement of it they endeavor to rewrite the history of that enforcement.