The Classical Liberal Constitution: The Uncertain Quest for Limited Government by Richard A. Epstein (Harvard University Press)

When I joined the faculty of the University of Chicago Law School in 1981, there were two defining figures: Richard Posner and Richard Epstein. Posner was the world’s most important voice in the emerging field of “law and economics.” At the time he believed that courts should “maximize wealth.” Epstein, a defender of personal autonomy with strong libertarian inclinations, was Posner’s most vocal critic. At the University of Chicago Law School lunch table, where the faculty ate four times each week, the two had some fierce struggles. Tempers flared. No one who was there will forget those lunches, which sometimes seemed like a form of combat.

Neither Epstein nor Posner had a lot to say about constitutional law; much of their focus was on private law and in particular on the law of torts. Posner had made his reputation with a famous article called “A Theory of Negligence,” in which he argued that under the common law, people who harmed others were held liable, and had to pay damages, only if the benefits of taking precautions outweighed the costs. In an article called “A Theory of Strict Liability,” Epstein took a different view. He argued that if one person harmed another, he had to pay damages, even if the benefits of taking precautions did not outweigh the costs. Epstein made a number of economic arguments, suggesting that strict liability was preferable on economic grounds. But it was clear that he was motivated, in significant part, by a concern for personal autonomy. Epstein seemed to think that if someone hurts you, he has to pay you.

Epstein also produced a brilliant essay on the problem of “nuisance.” In law, a nuisance arises when someone creates an unreasonable interference with people’s enjoyment of their property. Loud noises or noxious fumes can create a nuisance. Epstein explored, and had evident sympathy for, a simple intuitive judgment about corrective justice: if people are injuring you, they have to stop. But he insisted that the real world complicates the use of that judgment. People face various barriers to initiating lawsuits, and when many people are injured by an action, as in the case of pollution, the private law system may be inadequate. But in Epstein’s view, we should always keep in mind the central goals of that system, one of which is to render “to each person whatever redress is required because of the violation of his rights by another.” He contended that it “is possible, both in the pollution cases and in the others that we have considered, to trace the heritage of private law concepts into problems which, solely because of their bulk and unwieldiness, have become the proper subject of the public law.”

In the early 1980s, Epstein was an expert on the law of tort, property, and contract; he did not teach constitutional law. But in view of his work on nuisance, his libertarian inclinations, and his deep skepticism about regulation and regulators, he became acutely interested in the Fifth Amendment’s Takings Clause, which forbids the federal government from taking people’s property except for “public use” and on provision of just compensation. In 1985, he published a book called Takings: Private Property and the Power of Eminent Domain, which asserted that a great deal of what is done by modern governments is an unconstitutional “taking.” In Epstein’s view, it was worth wondering whether regulations that purport to help disadvantaged people—such as minimum-wage and maximum-hour laws—should be counted as constitutionally dubious “takings.” “It will be said that my position invalidates much of the twentieth-century legislation, and so it does,” Epstein remarked. “But does that make the position wrong in principle?”

Many constitutional law scholars thought that Epstein’s book was eccentric, but it struck a chord. In fact it became a bit of a sensation, at least in libertarian circles. During the confirmation hearings for Clarence Thomas, Joseph Biden, then chairman of the Senate Judiciary Committee, pointed to Epstein’s book and sharply criticized it. Epstein followed that book with a series of ambitious academic articles and books, essentially arguing that significant parts of the New Deal and the Great Society were unconstitutional. In his view, much of what modern government does is inconsistent with the constitutional plan. Not by the way, Epstein wrote a whole book contending that in key respects, contemporary civil rights legislation is a very bad idea, at least insofar as it forbids discrimination by private companies, who should generally be entitled to make their own free choices.