Most helpful critical review
42 of 48 people found the following review helpful
on May 22, 2009
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.