The Classical Liberal Constitution


Author: Richard A. Epstein
Publisher: Harvard University Press
ISBN: 0674727800
Category: Law
Page: 700
View: 5412

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American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard Epstein laments this complacency which, he believes, explains America's current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers' original constitutional design. Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, classical liberalism emphasized federalism, restricted government, separation of powers, and strong protection of individual rights. New Deal progressives challenged this synthesis by embracing government as a force for social good rather than a necessary evil. The Supreme Court has unwisely ratified the progressive program by sustaining many legislative initiatives at odds with the classical liberal Constitution. Epstein addresses both the Constitution's structural safeguards against state power and its protection of individual rights. He sheds light on contemporary disputes ranging from presidential prerogatives to health care legislation, while exploring such enduring topics as judicial review, economic regulation, freedom of speech and religion, and equal protection.

How Progressives Rewrote the Constitution


Author: Richard A. Epstein
Publisher: Cato Institute
ISBN: 1933995297
Category: Political Science
Page: 158
View: 6835

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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. This book 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.

Design for Liberty

Private Property, Public Administration, and the Rule of Law
Author: Richard A. Epstein
Publisher: Harvard University Press
ISBN: 0674063058
Category: Law
Page: 248
View: 3141

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The noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state gives too much discretion to regulators, which results in arbitrary, unfair decisions and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights.

Skepticism and Freedom

A Modern Case for Classical Liberalism
Author: Richard A. Epstein
Publisher: University of Chicago Press
ISBN: 9780226213040
Category: Philosophy
Page: 311
View: 2204

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With this book, Richard A. Epstein provides a spirited and systematic defense of classical liberalism against the critiques mounted against it over the past thirty years. One of the most distinguished and provocative legal scholars writing today, Epstein here explains his controversial ideas in what will quickly come to be considered one of his cornerstone works. He begins by laying out his own vision of the key principles of classical liberalism: respect for the autonomy of the individual, a strong system of private property rights, the voluntary exchange of labor and possessions, and prohibitions against force or fraud. Nonetheless, he not only recognizes but insists that state coercion is crucial to safeguarding these principles of private ordering and supplying the social infrastructure on which they depend. Within this framework, Epstein then shows why limited government is much to be preferred over the modern interventionist welfare state. Many of the modern attacks on the classical liberal system seek to undermine the moral, conceptual, cognitive, and psychological foundations on which it rests. Epstein rises to this challenge by carefully rebutting each of these objections in turn. For instance, Epstein demonstrates how our inability to judge the preferences of others means we should respect their liberty of choice regarding their own lives. And he points out the flaws in behavioral economic arguments which, overlooking strong evolutionary pressures, claim that individual preferences are unstable and that people are unable to adopt rational means to achieve their own ends. Freedom, Epstein ultimately shows, depends upon a skepticism that rightly shuns making judgments about what is best for individuals, but that also avoids the relativistic trap that all judgments about our political institutions have equal worth. A brilliant defense of classical liberalism, Skepticism and Freedom will rightly be seen as an intellectual landmark.

Takings

Private Property and the Power of Eminent Domain
Author: Richard Allen EPSTEIN,Richard Allen Epstein
Publisher: Harvard University Press
ISBN: 0674036557
Category: Law
Page: 376
View: 6071

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If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory.

Principles For A Free Society

Reconciling Individual Liberty With The Common Good
Author: Richard A. Epstein,A Epstein
Publisher: N.A
ISBN: 9780786748754
Category: Political Science
Page: 364
View: 564

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The country's leading libertarian scholar sets forth the essential principles for a legal system that best balances individual liberty versus the common good.

Forbidden Grounds

The Case Against Employment Discrimination Laws
Author: Richard A. Epstein
Publisher: Harvard University Press
ISBN: 9780674308091
Category: Business & Economics
Page: 530
View: 9028

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This controversial book presents a powerful argument for the repeal of anti-discrimination laws within the workplace. These laws--frequently justified as a means to protect individuals from race, sex, age, and disability discrimination--have been widely accepted by liberals and conservatives alike since the passing of the 1964 Civil Rights Act and are today deeply ingrained in our legal culture. Richard Epstein demonstrates that these laws set one group against another, impose limits on freedom of choice, undermine standards of merit and achievement, unleash bureaucratic excesses, mandate inefficient employment practices, and cause far more invidious discrimination than they prevent. Epstein urges a return to the common law principles of individual autonomy that permit all persons to improve their position through trade, contract, and bargain, free of government constraint. He advances both theoretical and empirical arguments to show that competitive markets outperform the current system of centralized control over labor markets. Forbidden Grounds has a broad philosophical, economic, and historical sweep. Epstein offers novel explanations for the rational use of discrimination, and he tests his theory against a historical backdrop that runs from the early Supreme Court decisions, such as Plessy v. Ferguson which legitimated Jim Crow, through the current controversies over race-norming and the 1991 Civil Rights Act. His discussion of sex discrimination contains a detailed examination of the laws on occupational qualifications, pensions, pregnancy, and sexual harassment. He also explains how the case for affirmative action is strengthened by the repeal of employment discrimination laws.He concludes the book by looking at the recent controversies regarding age and disability discrimination. Forbidden Grounds will capture the attention of lawyers, social scientists, policymakers, and employers, as well as all persons interested in the administration of this major

Constitutional Originalism

A Debate
Author: Robert W. Bennett,Lawrence B. Solum
Publisher: Cornell University Press
ISBN: 0801461111
Category: Law
Page: 224
View: 2522

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Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.

Mortal Peril

Our Inalienable Right to Health Care?
Author: Richard A. Epstein
Publisher: Basic Books
ISBN: 9780738201894
Category: Medical
Page: 503
View: 929

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Examines the social and financial benefits of an unregulated healthcare system while offering examples of how present day regulations are affecting medical care from being provided in specific areas. Reprint.

The Redistribution Recession

How Labor Market Distortions Contracted the Economy
Author: Casey B. Mulligan
Publisher: Oxford University Press
ISBN: 0199942218
Category: Business & Economics
Page: 351
View: 6401

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"Major subsidies and regulations intended to help the poor and unemployed were changed in more than a dozen ways after 2007. Economist Casey B. Mulligan argues that many of these changes were reasonable reactions to economic events, with the intention of helping people endure the recession, but they also reduced incentives for people to work and businesses to hire. He measures the startling changes in implicit tax rates that resulted from a labyrinth of new and expanded 'social safety net' programs, and quantifies the effects of these changes on the labor market and the economy. He also reveals how borrowers can expect their earnings to affect the amount that lenders will forgive in debt renegotiation, and how this has acted as a massive implicit tax on earning. He explains how redistribution in the forms of subsidies, taxes and minimum-wage laws profoundly altered the path of the economy and made the recent recession one of the deepest and longest in decades. The Redistribution Recession is a controversial, clear-cut, and thoroughly researched analysis of the effects of various government policies on the labor market. It offers ground-breaking interpretations and precise explanations of the interplay between unemployment and financial markets."--Jacket.

Why Progressive Institutions are Unsustainable


Author: Richard Epstein
Publisher: Encounter Books
ISBN: 1594036276
Category: Business & Economics
Page: 64
View: 1013

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The painful performance of the American economy in the past decade is not a function of bad luck. It is the product of flawed institutional design. Right now we are reaping the harvest of efforts to reinvigorate the progressive programs of the New Deal that stress high progressive taxes, large transfer payments, strong labor laws, and major barriers to free trade. This combination of public finance and market regulation has proved a potent force for disaster. High marginal tax rates expose the political system to strong factional strife that stifles initiative, adds uncertainty and reduces overall revenues. To these multiple ailments, Epstein argues that the best recipe is a return to the flat tax of the classical liberal tradition. The government has committed itself to substituting state mandates for voluntary arrangements in labor and real estate markets, disabling both by retarding job formation and roiling real estate markets. To these multiple ailments, Epstein argues that the best recipe is a reinvigoration of free markets that do not upset voluntary arrangements on the supposed grounds that they are unfair, one-sided or exploitive. Just change these two levers, and we can find an effective classical liberal antidote to excesses of the modern progressive age.

The System of Liberty

Themes in the History of Classical Liberalism
Author: George H. Smith
Publisher: Cambridge University Press
ISBN: 110735479X
Category: Political Science
Page: N.A
View: 9243

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Liberal individualism, or 'classical liberalism' as it is often called, refers to a political philosophy in which liberty plays the central role. This book demonstrates a conceptual unity within the manifestations of classical liberalism by tracing the history of several interrelated and reinforcing themes. Concepts such as order, justice, rights and freedom have imparted unity to this diverse political ideology by integrating context and meaning. However, they have also sparked conflict, as classical liberals split on a number of issues, such as legitimate exceptions to the 'presumption of liberty', the meaning of 'the public good', natural rights versus utilitarianism, the role of the state in education, and the rights of resistance and revolution. This book explores these conflicts and their implications for contemporary liberal and libertarian thought.

The Coalition and the Constitution


Author: Vernon Bogdanor
Publisher: Bloomsbury Publishing
ISBN: 1847316409
Category: Law
Page: 162
View: 2127

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`England', Benjamin Disraeli famously said, `does not love coalitions'. But 2010 saw the first peace-time coalition in Britain since the 1930s. The coalition, moreover, may well not be an aberration. For there are signs that, with the rise in strength of third parties, hung parliaments are more likely to recur than in the past. Perhaps, therefore, the era of single-party majority government, to which we have become accustomed since 1945, is coming to an end. But is the British constitution equipped to deal with coalition? Are alterations in the procedures of parliament or government needed to cope with it? The inter-party agreement between the coalition partners proposes a wide ranging series of constitutional reforms, the most important of which are fixed-term parliaments and a referendum on the alternative vote electoral system, to be held in May 2011. The coalition is also proposing measures to reduce the size of the House of Commons, to directly elect the House of Lords and to strengthen localism. These reforms, if implemented, could permanently alter the way we are governed. This book analyses the significance of coalition government for Britain and of the momentous constitutional reforms which the coalition is proposing. In doing so it seeks to penetrate the cloud of polemic and partisanship to provide an objective analysis for the informed citizen.

Religion without God


Author: Ronald Dworkin
Publisher: Harvard University Press
ISBN: 0674728041
Category: Philosophy
Page: N.A
View: 1841

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In his last book, Ronald Dworkin addresses timeless questions: What is religion and what is God's place in it? What are death and immortality? He joins a sense of cosmic mystery and beauty to the claim that value is objective, independent of mind, and immanent in the world. Belief in God is one manifestation of this view, but not the only one.

Supreme Neglect

How to Revive Constitutional Protection For Private Property
Author: Richard A. Epstein
Publisher: Oxford University Press
ISBN: 9780198041443
Category: Law
Page: 208
View: 3616

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As far back as the Magna Carta in 1215, the right of private property was seen as a bulwark of the individual against the arbitrary power of the state. Indeed, common-law tradition holds that "property is the guardian of every other right." And yet, for most of the last seventy years, property rights had few staunch supporters in America. This latest addition to Oxford's Inalienable Rights series provides a succinct, pointed look at property rights in America--how they came to be, how they have evolved, and why they should once again be a mainstay of the law. Richard A. Epstein, the nation's preeminent authority on the subject, examines all aspects of private property--from real estate to air rights to intellectual property. He takes the reader from the strongly protective property rights advocated by the framers of the Constitution through to the weak property rights supported by Progressive and liberal politicians of the twentieth century and finally to our own time, which has seen a renewed appreciation of property rights in the aftermath of the Supreme Court's landmark Kelo v. New London decision in 2005. The author's own powerful defense of property rights threads through the narrative. Using both political theory and economic analysis, Epstein argues that above all that private property is a sound social institution, and not just an excuse for selfishness and greed. Only a system of private property lets people form and raise families, organize religious and other charitable organizations, and earn a living through honest labor. Supreme Neglect offers a compact, incisive look at this hotly contested constitutional right, championing property rights as an essential social institution.

The Tragedy of William Jennings Bryan

Constitutional Law and the Politics of Backlash
Author: Gerard N. Magliocca
Publisher: Yale University Press
ISBN: 0300153155
Category: Biography & Autobiography
Page: 249
View: 1459

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Although Populist candidate William Jennings Bryan lost the presidential elections of 1896, 1900, and 1908, he was the most influential political figure of his era. In this astutely argued book, Gerard N. Magliocca explores how Bryan's effort to reach the White House energized conservatives across the nation and caused a transformation in constitutional law. Responding negatively to the Populist agenda, the Supreme Court established a host of new constitutional principles during the 1890s. Many of them proved long-lasting and highly consequential, including the "separate but equal" doctrine supporting racial segregation, the authorization of the use of force against striking workers, and the creation of the liberty of contract. The judicial backlash of the 1890s--the most powerful the United States has ever experienced--illustrates vividly the risks of seeking fundamental social change. Magliocca concludes by examining the lessons of the Populist experience for advocates of change in our own divisive times.

The Strategic Constitution


Author: Robert Cooter
Publisher: Princeton University Press
ISBN: 9780691096209
Category: Law
Page: 412
View: 7415

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Making, amending, and interpreting constitutions is a political game that can yield widespread suffering or secure a nation's liberty and prosperity. Given these high stakes, Robert Cooter argues that constitutional theory should trouble itself less with literary analysis and arguments over founders' intentions and focus much more on the real-world consequences of various constitutional provisions and choices. Pooling the best available theories from economics and political science, particularly those developed from game theory, Cooter's economic analysis of constitutions fundamentally recasts a field of growing interest and dramatic international importance. By uncovering the constitutional incentives that influence citizens, politicians, administrators, and judges, Cooter exposes fault lines in alternative forms of democracy: unitary versus federal states, deep administration versus many elections, parliamentary versus presidential systems, unicameral versus bicameral legislatures, common versus civil law, and liberty versus equality rights. Cooter applies an efficiency test to these alternatives, asking how far they satisfy the preferences of citizens for laws and public goods. To answer Cooter contrasts two types of democracy, which he defines as competitive government. The center of the political spectrum defeats the extremes in "median democracy," whereas representatives of all the citizens bargain over laws and public goods in "bargain democracy." Bargaining can realize all the gains from political trades, or bargaining can collapse into an unstable contest of redistribution. States plagued by instability and contests over redistribution should move towards median democracy by increasing transaction costs and reducing the power of the extremes. Specifically, promoting median versus bargain democracy involves promoting winner-take-all elections versus proportional representation, two parties versus multiple parties, referenda versus representative democracy, and special governments versus comprehensive governments. This innovative theory will have ramifications felt across national and disciplinary borders, and will be debated by a large audience, including the growing pool of economists interested in how law and politics shape economic policy, political scientists using game theory or specializing in constitutional law, and academic lawyers. The approach will also garner attention from students of political science, law, and economics, as well as policy makers working in and with new democracies where constitutions are being written and refined.

Uncertain Justice

The Roberts Court and the Constitution
Author: Laurence Tribe,Joshua Matz
Publisher: Henry Holt and Company
ISBN: 0805099131
Category: Political Science
Page: 416
View: 8690

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With the Supreme Court more influential than ever, this eye-opening book tells the story of how the Roberts Court is shaking the foundation of our nation's laws From Citizens United to its momentous rulings regarding Obamacare and gay marriage, the Supreme Court under Chief Justice John Roberts has profoundly affected American life. Yet the court remains a mysterious institution, and the motivations of the nine men and women who serve for life are often obscure. Now, in Uncertain Justice, Laurence Tribe and Joshua Matz show the surprising extent to which the Roberts Court is revising the meaning of our Constitution. This essential book arrives at a make-or-break moment for the nation and the court. Political gridlock, cultural change, and technological progress mean that the court's decisions on key topics—including free speech, privacy, voting rights, and presidential power—could be uniquely durable. Acutely aware of their opportunity, the justices are rewriting critical aspects of constitutional law and redrawing the ground rules of American government. Tribe—one of the country's leading constitutional lawyers—and Matz dig deeply into the court's recent rulings, stepping beyond tired debates over judicial "activism" to draw out hidden meanings and silent battles. The undercurrents they reveal suggest a strikingly different vision for the future of our country, one that is sure to be hotly debated. Filled with original insights and compelling human stories, Uncertain Justice illuminates the most colorful story of all—how the Supreme Court and the Constitution frame the way we live.

Constitutional Conservatism


Author: Peter Berkowitz
Publisher: Hoover Press
ISBN: 0817916040
Category: Law
Page: 133
View: 5728

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Social conservatives and libertarians: Is a meeting of the minds possible? Feuding among US conservatives for the title True Conservative is nothing new. Underlying the feud has been a failure to grasp that conservatism in America forms a family of principles that require accommodation: to each other, to the exigencies of the moment, and to the changing habits and opinions of the American people. In Constitutional Conservatism, Peter Berkowitz identifies the political principles social conservatives and libertarians share, or should share, and sketches the common ground on which they can and should join forces. Drawing on the writings of Edmund Burke, The Federalist, and the high points of post-War II American conservatism, Berkowitz argues that the top political priority for social conservatives and libertarians should be to rally around the principles of liberty crystallized in the US Constitution and pursue reform in light of them. He shows that this task depends on the cultivation of the virtue of political moderation, which at its peak consists in the balancing of rival but worthy principles. He concludes that constitutional conservatism, well understood, provides a sturdy framework for developing a distinctive political agenda to which both social conservatives and libertarian conservatives can in good conscience subscribe.