Epstein on the Role of the Constitution

So Richard Epstein got interviewed by Russ Roberts over at EconTalk about the Constitution. Yes, more libertarians talking about the Constitution, my favorite. I might comment on the whole interview later but I want to discuss the first question and answer to this interview.

Roberts asked Epstein, “How has the role of the Constitution changed in the United States since the founding? How has our understanding of it evolved, good and bad? And that, of course, we could spend 7 or 8 hours on, but why don’t you open us up with a general overview of the biggest trends.”

Epstein response is reasonable I guess, though it is very general, so it is hard to point out what he means on certain points.  Of course one major thing I disagree with him on his his view that Alexander Hamilton championed protection tariffs. Not only is there not evidence to support that Hamilton ever supported protection tariffs, but Hamilton also directly refuted protection tariff policies (look at “Would Hamilton Advocate Protectionism?” for more info).

Epstein is also right that the Constitution was drafted as a way to deal with the disadvantages produced in the Articles of Confederation. But then here is where he puts his libertarian spin. Starting at 4:20ish he states:

The Constitution was drafted as a way to get rid of the defects in the Articles of Confederation, rather than to create the modern welfare and New Deal State.

In a way, this is true but misleading. We get the implication that this so called welfare state was against Constitutional principles, for it was not drafted for that reason. And this is how Epstein concludes his summary:

Its a huge difference.. a classical liberal state, small government, strong property rights to a large state with heavy administration law, concurrent jurisdiction and lots of discretion thats being given to agents of all levels of government. Its a really very very big change that took place.**

Over at Cafe Hayek, Roberts copied and pasted the first question he asked Epstein and told his readers what they thought Epstein answer was. Roberts said, “I was prepared for him to say that over time, we’ve increasingly ignored the Constitution and done whatever we want. That wasn’t his answer.”

But that was exactly Epstein’s answer to Roberts’ question. Epstein is basically saying, “The Constitiuion was drafted for classical liberal purposes, but over time the American government has turned into this welfare New Deal state! Its a really very very big change.” In essence, Epstein is trying to get the readers to note that this “welfare New Deal state” was not the reason why the Constitution was drafted, so therefore this “welfare New Deal” state goes against Constitutional principles that the American Founding Fathers envisioned. In other words, Epstein is saying that over time, we have lost sight on what the implications of the Constitution were.

I obviously disagree with this answer too. Even back then, people did not know how big the size of government should be. There was always constant debate about that, let alone what constituted the size of government as big or small. For example, the Anti-Federalists thought that the more centralized Constitutional government was too big, even comparing it to the monarchial British system.

I would have answered Roberts’ question differently. I would have said something like, “The Constitution was drafted (and authors of The Federalist Papers defended its ratification) because many were concerned that under the Articles of Confederation, America was going to crumble somehow, at worst, it would have a civil war with the different ‘confederacies’ fighting because the structure of the central government was too loose. It was drafted, in other words, to preserve the Union at all costs. In modern times, many peoples’ understanding of the Constitution is that of viewing the Constitution as a document of representing a “classical liberal” or a limited government view, and that there is no room in the Constitution giving the government the power to adapt to unexpected change as time goes on. This is to say, granting the government power to adapt to the problems of the time in the attempt to solve them.”

I only had time to listen to the first 6 minutes or so, so I can’t comment on the rest of the interview, though I will finish hearing it sometime soon.

** I like Epstein’s “really very very” emphasis