Both progressives and conservatives fundamentally misunderstand our most important founding document.
This coming week, Harvard University Press will publish my new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government. This 700-page volume took me over seven years to complete, and it offers a distinctive third approach to constitutional law that helps explain why the current Supreme Court’s conceptual framework is in a state of serious intellectual disrepair on many, but by no means all, issues.
Conventional wisdom divides constitutional judges and scholars into two warring camps: conservative and progressive. The classical liberal offers a third point of view, by explaining how our Constitution secures a system of strong property rights and limited government. It does so by rejecting the deep antitheoretical strand that often guides both conservative and progressive thought, and leads both groups—for somewhat different reasons—to support a highly deferential, if misnamed, “rational basis” test to assess the constitutionality of congressional and legislative action.
The Lochner Syndrome
Conservative thinkers often start their constitutional analysis with neither text nor structure, but with their own view of the proper role of the Supreme Court in a democratic society. In their view, the essential choices about the social and economic structure properly belong to the political branches of government at both the federal and state level.
The view holds that the judiciary should override statutes and executive actions only in exceptional cases. They think no judge should translate his policy objections to particular laws into constitutional terms. Thus, in The Tempting of America, Robert Bork called the Supreme Court’s 1905 decision in Lochner v. New York—which by a five-to-four vote declared New York’s controversial maximum-hours law unconstitutional—an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”