Property is the New Privacy
Richard Epstein’s new book, The Classical Liberal Constitution, is the latest entry in what might be called conservative foundationalist constitutional theory. The movement’s primary goal is to elevate judicial protection of economic rights to the same level that is currently accorded to non-economic or personal rights, and thus to make it much more difficult for the government to regulate economic activity. Freedom of contract, for these theorists, is on a par with freedom of speech, and property rights are as important as privacy rights. Epstein’s version of the theory, although sophisticated and nuanced, is ultimately unpersuasive for reasons I catalogue in Part I of this essay. But the book’s real flaw lies in the underlying belief that Epstein shares with other conservative foundationalists: that economic and personal rights are equivalent and should be treated accordingly. Indeed, as I suggest in Part II, even Epstein himself seems to occasionally hesitate to take this premise to its ultimate conclusion. And it turns out that the whole issue of the equivalence of economic and personal rights raises some very interesting questions about American constitutional scholarship of the last seventy-five years. Black-letter law since 1938 has unequivocally separated economic from personal rights, leaving the former largely to the mercy of the legislature while simultaneously zealously protecting the latter. Surprisingly, however, as I discuss in Part III, there has been almost no sustained academic defense of that post-New Deal status quo. The little that exists is no match for the comprehensive arguments of the conservative foundationalists. Epstein and his fellow-travelers are attempting to revolutionize constitutional law, with little or no serious scholarly opposition in the legal academy. That missing opposition, and not the book itself, is the real story.