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.
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.
In this provocative book, Richard Epstein shows how Progressives saw in constitutional interpretation an opportunity to advance their political agenda. They transformed a Constitution that reflected the influence of John Lock and James Madison into one that reflected the ideas of the leading intellectuals of their own time. As a result, they rewrote, because they did not understand, key provisions of the constitutional text.
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.
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.
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.
The country's leading libertarian scholar sets forth the essential principles for a legal system that best balances individual liberty versus the common good.
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
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.
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.
Early in his rise to enlightenment, man invented a concept that has since been variously viewed as a vice, a crime, a business, a pleasure, a type of magic, a disease, a folly, a weakness, a form of sexual substitution, an expression of the human instinct. He invented gambling. Recent advances in the field, particularly Parrondo's paradox, have triggered a surge of interest in the statistical and mathematical theory behind gambling. This interest was acknowledge in the motion picture, "21," inspired by the true story of the MIT students who mastered the art of card counting to reap millions from the Vegas casinos. Richard Epstein's classic book on gambling and its mathematical analysis covers the full range of games from penny matching to blackjack, from Tic-Tac-Toe to the stock market (including Edward Thorp's warrant-hedging analysis). He even considers whether statistical inference can shed light on the study of paranormal phenomena. Epstein is witty and insightful, a pleasure to dip into and read and rewarding to study. The book is written at a fairly sophisticated mathematical level; this is not "Gambling for Dummies" or "How To Beat The Odds Without Really Trying." A background in upper-level undergraduate mathematics is helpful for understanding this work. Comprehensive and exciting analysis of all major casino games and variants Covers a wide range of interesting topics not covered in other books on the subject Depth and breadth of its material is unique compared to other books of this nature Richard Epstein's website: www.gamblingtheory.net
Judge Bork shares a personal account of the Senate Judiciary Committee's hearing on his nomination as well as his view on politics versus the law. In The Tempting of America, one of our most distinguished legal minds offers a brilliant argument for the wisdom and necessity of interpreting the Constitution according to the “original understanding” of the Framers and the people for whom it was written. Widely hailed as the most important critique of the nation’s intellectual climate since The Closing of the American Mind, The Tempting of America illuminates the history of the Supreme Court and the underlying meaning of constitutional controversy. Essential to understanding the relationship between values and the law, it concludes with a personal account of Judge Bork’s chillingly emblematic experiences during the Senate Judiciary Committee’s hearing on his Supreme Court nomination.
Alexander Hamilton wrote that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.” If only that were true. The Founding Fathers wanted the judicial branch to serve as a check on the power of the legislative and executive, and gave the Supreme Court the responsibility of interpreting the Constitution in a way that would safeguard individual freedoms. In some cases, like Brown V. Board of Education and United States V. Lopez, the Court fulfilled its role, protecting us from racial discrimination and the heavy hand of the federal government. But sadly, the Supreme Court has also handed down many destructive decisions on cases you probably never learned about in school. In The Dirty Dozen, two distinguished legal scholars shed light on the twelve worst cases, which allowed government to interfere in your private contractual agreements; curtail your rights to criticize or support political candidates; arrest and imprison you indefinitely, without filing charges; and seize your private property, without compensation, when someone uses the property for criminal activity—even if you don’t know about it! This is not a book just for lawyers. It’s for all Americans who want to understand how the Supreme Court can affect our right to life, liberty, and the pursuit of happiness. This paperback edition includes a new preface, “Guns, Bailouts, and Empathetic Judges,” which highlights new and critical issues that have arisen since the book’s initial edition was published in 2008.
Cases and Materials on Torts, Eleventh Edition for Fall 2016 classes. This top tier casebook integrates modern scholarship with historical background to provide a sense of the development of tort law. The thoughtful presentation engages students by examining different intellectual approaches used to interpret law. The 11th edition carries many successful features from earlier editions, including extensive historical materials on the evolution of tort law, an expanded treatment of public nuisance law, recent developments in products liability law, expansion of the materials on various types of injuries in damage cases, and heavier emphasis on web-based communications under the law of defamation and privacy. Key Features: Updated two-color design New Restatement boxes that highlight the law for easy reference Condensation of basic material, including a combination of the insurance contract and no fault insurance issues into a single chapter Introduction of new visual materials in each chapter, including pictures charts, cartoons, and biographical sketches of key figures in tort law, as an assist to the case and other materials
Praised as a must-have primer during the Roberts and Alito hearings, Radicals in Robes offers a rigorous yet accessible analysis of what’s at stake in the judiciary choices made during these warring days of the Warren/Rehnquist legacy. Radicals in Robes pulls away the veil of rhetoric from a dangerous and radical movement and issues a strong and passionate warning about what conservatives really intend.
In ruling after ruling, the three most important pre-Civil War justices--Marshall, Taney, and Story--upheld slavery. Paul Finkelman establishes an authoritative account of each justice's proslavery position, the reasoning behind his opposition to black freedom, and the personal incentives that embedded racism ever deeper in American civic life.
Writing the perfect complement to their bestseller, Introducing Public Administration, Shafritz and Borick highlight the great drama inherent in public policy -- and the ingenuity of its makers and administrators -- in this new casebook that brings thrilling, true life adventures in public administration to life in an engaging, witty style. Drawing on a unique assortment of literary, historic, and modern examples, Cases in Public Policy and Administration exposes students to public administration in practice by telling the tales of: How Thurgood Marshall led the legal fight for civil rights and made it possible for Barack Obama to become president How the ideas of an academic economist and a famous novelist led to the recession that started in 2008 How Al Gore really deserves just a little bit of credit for inventing the Internet How the decision was made by President Harry Truman to drop the first atomic bomb on Japan in order to end World War II How the current American welfare state was inspired by a German chancellor How a Nazi war criminal inadvertently provided the world with a lesson in bureaucratic ethics How Napoleon Bonaparte encouraged the job of chief of staff to escape from the military and live in contemporary civilian offices How an obscure state department bureaucrat wrote the policy of containment that allowed the United States to win the Cold War with the Soviet Union How Dwight D. Eisenhower was started on the road to the presidency by a mentor he found in the Panamanian rain forest How Florence Nightingale gathered statistics during the Crimean War that helped lead to contemporary program evaluation.
An analysis of American political history using the economic framework of public choice theory
For more than two hundred years a debate has raged between those who believe that jurists should follow the original intentions of the Founding Fathers and those who argue that the Constitution is a living document subject to interpretation by each succeeding generation. The controversy has flared anew in our own time as a facet of the battle between conservatives and liberals. In Original Intent and the Framers' Constitution, the distinguished constitutional scholar Leonard Levy cuts through the Gordian Knot of claim and counterclaim with an argument that is clear, logical, and compelling. Rejecting the views of both left and right, he evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases. Finally, he finds no evidence for grounding the law in original intent. Judicial activism—the constant reinterpretation of the Constitution—he sees as inevitable.