Author Interview: Richard Epstein on his new book, ‘Design for Liberty’

Already well-known for such works as Principles For A Free Society: Reconciling Individual Liberty With The Common Good, How Progressives Rewrote the Constitution, and a widely used legal textbook on torts, New York University law professor Richard A. Epstein has just published Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press, 2011).

At a recent Cato Institute event, Professor Epstein spoke to me about his new book and his next project, a book about classical liberalism and constitutional law.

Design for Liberty, he said, differs from his previous books in that “it’s a little bit more philosophical. It spends much more time talking directly about public administration, which I have not talked about much in previous books.”

Moreover, Epstein added, it reflects his “newfound interest in public administrative law, which is usually missing from the earlier works, and of course, it has material which I could never have covered earlier because things like the Dodd-Frank [banking] statute and the current health-care bill are creatures of the last year or so and therefore I never spoke about them before.”

First and second order rules
Digging further beneath the surface, Epstein pointed out that his new book contains “a fairly detailed explanation of first and second order rules, a sort of technical subject,” which involves the question of “when is it that you have to have to resort to reasonableness rules?”

Richard Epstein

That happens, he said, when “it turns out that hard-line rules don’t work and what you have to do in order to make the rule of law work is to understand that the mere fact that there’s a reasonableness in some legal system doesn’t disqualify from the rule of the law.”

“On the other hand,” he argued, “you can’t let reasonableness determinations overwhelm the whole system, so I try to develop protocols to how it is that you separate those things.”

Epstein’s next project will be what he describes as “a very long book” with the working title “The Classical Liberal Constitution.”

That book, he said, is “about 90 percent done.”

Progressive vs. classical liberal
In it, Epstein “takes the fundamental insights that I’ve developed over the years and basically gives a comprehensive analysis of every major constitutional area with a hell of a lot of compression, but it starts with basic theories of constitutional interpretation. It talks about the conflict between the progressive and the classical liberal visions. Those,” he said, “are things I’ve talked about before.”

Epstein’s forthcoming book “goes through systematically the judicial, the executive, and legislative branches, and then does all the various threads of individual rights, each getting a chapter.”

Unlike Design for Liberty, “which is slim,” The Classical Liberal Constitution “will be fat,” he said, with a likely publication date in late 2012 or early 2013.

“It’s been a book that’s been in the making for many years now,” Epstein explained. “It’s an effort to give a comprehensive way in which, if you take the positions that I do, various cases and various issues have to come out.”

The Classical Liberal Constitution will have “some stuff on takings, but that’s not the main focus on it. It has things on freedom of religion and executive power and foreign affairs and so forth.”

Epstein concedes that his “knowledge base is not uniform across all these areas but what makes it possible to do this project is that the Supreme Court doctrine generally tends to be comprised in a relatively few key cases.”

Consequently, “if you have a strong theory, and you pick the right cases to read, you can write the kind of book that I’m talking about.”

Eminent domain
Epstein also spoke with me about an issue in the news – eminent domain reform.

Across the country over the past few years, state legislatures have been considering and passing laws in reaction to the Supreme Court’s decision in Kelo v. City of New London (2005), which stated that governments could use eminent domain to take property from one private owner and give it to another private owner, if the transfer of property results in a “public purpose” such as more jobs or more tax revenues.

In a scathing dissent in that case, Justice Clarence Thomas memorably wrote:

“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

Fourteen years earlier, there had been a striking moment in then-Judge Thomas’s confirmation hearings when then-Senator Joseph Biden held up a book called Takings: Private Property and the Power of Eminent Domain, which Epstein wrote, and asked Thomas, essentially, if he believed what was in it.

That dramatic moment thrust legal scholar Richard Epstein into the public consciousness as the pre-eminent legal advocate for protecting private property against the intrusions of government. That is why asked him about the legal environment in the post-Kelo years and the affect that might have on future legislative attempts to protect against eminent domain abuse.

“No one is satisfied,” he said, with how the reactions to Kelo have played out over the past six years.

“This is the basic breakdown,” Epstein explained. “There are a few states which have fairly severe changes, some of them judicially, some otherwise. Michigan and Ohio, for example, are two.”

In addition, “many states have cosmetic changes, which require administrators to think more deeply before they do terrible things,” he pointed out, “and some states have relatively nominal requirements.”

Among these various regimes, he explained further, “the real difference turns out not to be in the law, it turns out to be in the practice.”

The reason is, he said, is that “once the Kelo situation came down, it raised the political cost to anybody who now wants to engage in taking of private property, particularly if it turns out to be a residential home.”

Epstein recalled a 1984 Supreme Court decision, Hawaii Housing Authority v. Midkiff, with a majority opinion written by Justice Sandra Day O’Connor, who also wrote the principal dissent in Kelo.

Midkiff, Epstein explained, “was hugely capacious, but it didn’t raise any hackles, because what was being condemned was a non-possessory interest.” It involved a “landlord’s interest in property” rented to tenants “and people, frankly, didn’t care [because] ‘these guys are landlords; they’re interested in money; we’ll give them a different stream of money.’”

Unlike Midkiff, he noted, “Kelo threw people off their property. And it threw them off their property for no reason at all.”

A person doesn’t “have to be a genius,” Professor Epstein said, “to figure out that when somebody’s thrown out of their house, which is ripped down by a pitchfork, you’d better have a very powerful justification for doing that.”

In Kelo, the justification was “real estate development, which is a sort of a bad end anyhow, but worse than that,” he continued, “there was no real estate development that required the use of that land.”

Consequently, Kelo “was an exercise in a dubious end and a crazy set of means. The two of those things together turned out to be really explosive and so now, both on the ends chosen and the means used to achieve it, there’s more scrutiny, which takes place as sort of an automatic administrative matter.”

Whether this sort of political scrutiny of local administrators is a sufficient brake on eminent domain abuse and a substitute for statutory or constitutional guarantees is a question that legislators will continue to ask.

(This article is adapted from two previous pieces that appeared on Examiner.com.)

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