by Richard A. Epstein
March 11, 2014
A sound interpretation of the Constitution requires reading its key provisions in light of the comprehensive classical liberal theory that animated their introduction. Constitutional law does not evolve in a self-contained universe, but is embedded in the intellectual tradition of private property and limited government. It is therefore deeply problematic to begin constitutional interpretation with either some preconceived notion of judicial restraint or the equally misguided belief that the justices are handmaidens to some “living constitution.” The Constitution is a complex document that gives powers to the legislature and the executive, but also empowers the courts to protect individual rights from encroachments by those branches, and private property is the central institution of classical liberal theory. Modern democratic collectivists of all sorts will never master their constitutional theory unless they first learn from the bottom-up how the institutions of private law operate.