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Published online by Cambridge University Press:  30 November 2010

Richard A. Epstein
Law, New York University


The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements.

Research Article
Copyright © Social Philosophy and Policy Foundation 2011

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1 Madison, James, Federalist No. 51, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961)Google Scholar.

2 See Madison, James, Property (1792), in The Papers of James Madison (Charlottesville: University of Virginia Press, 1983), 14, pp. 266–68Google Scholar. The relevant passage reads as follows:

This term [i.e., “property”] in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man's land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Note that the first line quoted is a softened redaction of the famous definition of property from Blackstone, William, Commentaries on the Laws of England: Book the Second of The Rights of Things (1766)Google Scholar: “That sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Missing are the words “despotic” and “total.”

3 See Humphrey's Executor v. United States, 295 U.S. 602 (1935)Google Scholar (holding that the president cannot dismiss an FTC commissioner except for cause).

4 For the modern formulation of delegated authority, see Whitman v. American Trucking Association, Inc., 531 U.S. 457 (2001)Google Scholar (allowing any delegation informed by an “intelligible principle”).

5 U.S. Constitution, art. I, sec. 8, cl. 3.

6 See Gibbons v. Ogden, 22 U.S. 1 (1824)Google Scholar (voiding a state law that blocked out-of-state ships from using steam power in New York waters); E. C. Knight and Co. v. United States, 156 U.S. 1 (1895)Google Scholar (dismissing antitrust suit against sugar refiners as outside the scope of the commerce power).

7 See, e.g., National Labor Relations Board v. Jones and Laughlin Steel, 301 U.S. 1 (1937)Google Scholar (sustaining national labor statute against commerce clause challenge); Wickard v. Filburn, 317 U.S. 111 (1942)Google Scholar (sustaining national labor statute for regulation of agricultural production).

8 See, e.g., Adair v. United States, 208 U.S. 161 (1908)Google Scholar (striking down federal law that required collective bargaining in interstate commerce); Coppage v. Kansas, 236 U.S. 1 (1915)Google Scholar (voiding a statute prohibiting employers from blocking attempts by their employees to associate with labor unions).

9 See, e.g., Crane, Daniel A., “The Story of United States v. Socony-Vacuum: Hot Oil and Antitrust in the Two New Deals,” in Fox, Eleanor M. and Crane, Daniel A., eds., Antitrust Stories (New York: Foundation Press, 2007)Google Scholar, 91–119 (recounting the switch in government policy, within a very short period of time, from supporting industry-wide cartels to subjecting them to criminal prosecution). For the criminal prosecution, see United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940)Google Scholar (upholding a conviction for antitrust violations).

10 For landmarks in that tradition, see Wilson, Woodrow, Congressional Government: A Study in American Politics (1885; Cleveland, OH: Meridian Books, 1956), 187Google Scholar (“It is, therefore, manifestly a radical defect in our federal system that it parcels out power and confuses responsibility as it does. The main purpose of the Convention of 1787 seems to have been to accomplish this grievous mistake.”); and Landis, James M., The Administrative Process: Integrating Theory and Practice (New Haven, CT: Yale University Press, 1938), 1112Google Scholar (attacking the principle of separation of powers, which Landis adjudged to be inadequate when government agencies had concerns with “the stability of an industry”).

11 See United States v. Carolene Products, 304 U.S. 144, 152–53 n. 4 (1938)Google Scholar (imposing heightened scrutiny on laws harmful to “discrete and insular” minorities).

12 Brown v. Board of Education, 347 U.S. 483 (1954)Google Scholar.

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17 One representative early quotation:

There is a time when a Christian must sell all and give to the poor, as they did in the Apostles times. There is a time allsoe when Christians (though they give not all yet) must give beyond their abillity, as they of Macedonia, Cor. 2, 6. Likewise community of perills calls for extraordinary liberality, and soe doth community in some speciall service for the Churche. Lastly, when there is no other means whereby our Christian brother may be relieved in his distress, we must help him beyond our ability rather than tempt God in putting him upon help by miraculous or extraordinary meanes.

Winthrop, John, “A Modell of Christian Charity” (1630), quoted in Arthur Brooks, “Religious Faith and Charitable Giving,” Policy Review (October and November, 2003), Scholar. Brooks also notes the higher rate of giving among conservative religious people.

18 Brooks, “Religious Faith and Charitable Giving.”

19 See Story, Joseph, Encyclopedia Americana (Clark, NJ: The Lawbook Exchange, 2006)Google Scholar.

20 See Brooks, “Religious Faith and Charitable Giving.”

21 See Olson, Mancur, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, MA: Harvard University Press, 1965)Google Scholar.

22 See U.S. Constitution, art. I, sec. 7, cls. 2 and 3.

23 For a discussion of some of the mechanisms that help keep constitutional institutions in place, see Levinson, Daryl J., “Parchment and Politics: The Positive Puzzle of Constitutional Commitment,” Social Science Research Network, Scholar.

24 See “The Break Up of Yugoslavia: 1990–1997,”

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26 Europa Glossary, “Treaty of Lisbon,”

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28 Canadian Charter of Rights and Freedoms, para. 33 (1982)Google Scholar.

29 Attorney General of Quebec v. Blaikie, 2 S.C.R. 1016 (1979)Google Scholar.

30 See U.S. Constitution, amend. XIV, sec. 1: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

31 Plessy v. Ferguson, 163 U.S. 537 (1896)Google Scholar.

32 Brown v. Board of Education, 347 U.S. 483 (1954)Google Scholar.

33 See U.S. Constitution, art. 1, sec. 8, cls. 10–16; art. 2, sec. 2, cl. 1.

34 See, e.g., Ackerman, Bruce, “2006 Oliver Wendell Holmes Lectures: The Living Constitution,” Harvard Law Review 120, no. 1737 (2006)Google Scholar: “After two centuries of development, America's political identity is at war with the system of constitutional revision left by the Framers. We understand ourselves today as Americans first and Californians second.”

35 Korematsu v. United States, 323 U.S. 214 (1944)Google Scholar.

36 For a full account of the fiasco, see Stone, Geoffrey R., Perilous Times: Free Speech in Wartime (New York: Norton and Company, 2004)Google Scholar.

37 Ford, Gerald, “Proclamation 4417—An American Promise” (February 19, 1976), Scholar: “We now know what we should have known then—not only was the evacuation wrong, but Japanese-Americans were and are loyal Americans.”

38 The Civil Liberties Act of 1988, Pub. L. No 100-383, 102 Stat. 903 (2000)Google Scholar, codified at 50 U.S.C. App. sec. 1989(b).

39 For the judicial reaction, see Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Google Scholar (holding that Congress had not authorized the use of military commissions to try detainees at Guantanamo Bay); Boumediene v. Bush, 128 S. Ct. 2229 (2008)Google Scholar (giving detainees at Guantanamo Bay the protection of habeas corpus, or an equivalent proceeding to challenge the legality of their detentions, even after Congress authorized the use of military commissions to resolve these proceedings).

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41 For a discussion of early congressional debates over whether and how to designate postal routes, see Currie, David P., The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), 146–49Google Scholar.

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43 For the various requirements, see U.S. Constitution, art 1, sec. 1; art. 1, sec. 7, cls. 2 and 3.

44 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)Google Scholar (striking down statute permitting one house to veto an executive branch decision not to deport an alien). See esp. id. at 945: “[P]olicy arguments supporting even useful ‘political inventions’ are subject to the demands of the Constitution which defines powers and, with respect to this subject, sets out just how those powers are to be exercised. Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process.”

45 Id. at 967 (White, J., dissenting): “Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the executive branch and independent agencies.”

46 Id. at 959 (Powell, J., concurring): “When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country it has assumed a judicial function in violation of the principle of separation of powers.”

47 See Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935)Google Scholar.

48 For an early discussion of the issue, see State ex rel. Railroad and Warehouse Commission v. Chicago, Milwaukee, and St. Paul Railroad, 37 N.W. 782, 787 (1888)Google Scholar. Mitchell, J., laid out powerful reasons why a legislature could not undertake to set thousands of different rates by itself. But he did miss one piece of the ultimate solution. If rates are to be set by a special commission, they should be subject to judicial review, given the fear of confiscation.

49 See, e.g., Ackerman, Bruce, “The New Separation of Powers,” Harvard Law Review 113 (2000): 633729CrossRefGoogle Scholar, which opens by taking to task Steven Calabresi's paean to American constitutional solutions in Calabresi, Steven G., “An Agenda for Constitutional Reform,” in Eskridge, William N. Jr., and Levinson, Sanford, eds., Constitutional Stupidities, Constitutional Tragedies (New York: NYU Press, 1998), 22Google Scholar. Ackerman's preferred alternative is a “constrained parliamentarism,” which rejects the presidential systems based in France and the United States (“The New Separation of Powers,” 640), and which adds in doses of federalism and national referenda.

50 Duverger, Maurice, Political Parties: Their Organization and Activity in the Modern State (Hoboken, NJ: Wiley, 1954)Google Scholar.

51 For my evaluation of the New Zealand system, see Epstein, Richard A., MMP—The Right Decision? (Wellington: New Zealand Business Round Table, 1999)Google Scholar. MMP refers to a “mixed member proportional” system, which does not allow for a single party to obtain exclusive control over government. Any system (such as MMP) that lets minor parties gain leverage at the polls tends to give those minor parties disproportionate influence in setting up a government.

52 See Bernd Hayo and Stefan Voigt, “The Determinants of Constitutional Change: When and Why Do Countries Change Their Form of Government?”

53 Perrson, T. and Tabellini, G., The Economic Effects of Constitutions (Cambridge, MA: The MIT Press, 2003)Google Scholar.

54 Acemoglu, Daron, “Constitutions, Politics, and Economics: A Review Essay on Persson and Tabellini's The Economic Effects of Constitutions,” NBER Working Paper No. W11235, Scholar. See also, Blume, Lorenz, Muller, Jens, Voigt, Stefan, and Wolf, Carsten, “The Economic Effects of Constitutions: Replicating—and Extending—Persson and Tabellini,” Public Choice (forthcoming)Google Scholar.

55 For a general, if qualified, endorsement of referenda, see Cooter, Robert, The Strategic Constitution (Princeton, NJ: Princeton University Press, 2000), 143–48Google Scholar. See also Ackerman, “The New Separation of Powers,” where Ackerman suggests ways to avoid the California excesses by limiting the number of issues that can be raised in this fashion, and by requiring two or more separate votes to pass a referendum.

56 Prior to the Proposition 8 referendum, the California Supreme Court recognized the right of same-sex couples to marry. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008)Google Scholar.

57 Gary C. Gambill, “Lebanon's Constitution and the Current Political Crisis,” “It was the informal 1943 National Pact that reserved the presidency for Maronite Christians, the office of prime minister for Sunni Muslims, and (a few years later) the office of parliament speaker for Shiite Muslims, while apportioning parliament seats according to a fixed sectarian quota.”

58 As Locke insisted, in the state of nature, “[t]here wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them.” Locke, John, Second Treatise of Government (1690), sec. 124Google Scholar. The needed rules should be (as they are often not today) “plain and intelligible” (ibid.). State power also remedies the want of a “known and indifferent Judge, with authority to determine all differences according to the established law” (ibid., sec. 125).

59 Montesquieu, The Spirit of the Laws, Book VI, sec. 3 (discussing the decrease in judicial discretion).

60 U.S. Constitution, art. I, sec. 9, cl. 2: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

61 National Labor Relations Act, 29 U.S.C. sec. 153(a).

62 U.S. Constitution, art. 2 sec. 2, cl. 2.

63 U.S. Constitution, art. 3, sec. 1.

64 Marbury v. Madison, 5 U.S. 137 (1803)Google Scholar.

65 Dred Scott v. Sandford, 60 U.S. 393 (1857)Google Scholar.

66 Brown v. Board of Education, 347 U.S. 483 (1954)Google Scholar.

67 For a discussion of these issues, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)Google Scholar; Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Google Scholar; and Boumediene v. Bush, 128 S. Ct. 2229 (2008)Google Scholar.

68 See, e.g., Olson, The Logic of Collective Action.

69 Canadian Charter of Rights and Freedoms, para. 33 (1982)Google Scholar.

70 For the recent infatuation with Edmund Burke, whose evolutionary approach meshes at best imperfectly with a written constitution, see Merrill, Thomas W., “Bork v. Burke,” Harvard Journal of Law and Public Policy 19 (1996): 509Google Scholar. See also Sunstein, Cass, “Burkean Minimalism,” Michigan Law Review 105 (2006): 353Google Scholar.

71 See Epstein, Richard A., How Progressives Rewrote the Constitution (Washington, DC: The Cato Institute, 2006)Google Scholar.

72 Lochner v. New York, 198 U.S. 45 (1905)Google Scholar.

73 For an exhaustive demonstration from the historical sources, see Bernstein, David, “Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism,” Georgetown Law Journal 92, no. 1 (2003)Google Scholar.

74 See National Labor Relations Board v. Jones and Laughlin Steel, 301 U.S. 1 (1937)Google Scholar (sustaining national labor statute against commerce clause challenge); Wickard v. Filburn, 317 U.S. 111 (1942)Google Scholar (sustaining national labor statute for regulation of agricultural production).

75 For the doctrine's repudiation in the United States, see Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)Google Scholar.

76 For the validation of the Bipartisan Campaign Reform Act, Pub. L. 107-155, 116 Stat. 81 (2002), see McConnell v. Federal Election Commission, 540 U.S. 93 (2003)Google Scholar.

77 McConnell, Michael W., “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1409CrossRefGoogle Scholar.

78 I sought to deal with many of these problems from a constitutional point of view in Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985)Google Scholar.

79 See Franklin D. Roosevelt, State of the Union Address, January 11, 1944:

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

80 For a thoughtful defense of this position, see Kim Lane Scheppele, “Social Rights in Constitutional Courts: Strategies of Articulation and Strategies of Enforcement,”