The Classical Constitution and the Historical Constitution: Separated at Birth

Abstract

As part of symposium on Richard Epstein’s new book, The Classical Liberal Constitution, this article points out that his purportedly historical approach is actually present-oriented, which undermines two particular parts of his analysis. First, his discussion of judicial review mischaracterizes both judicial review itself and its history. Second, his discussion of abortion restrictions as valid exercises of the police power ignores the historical evidence. That evidence demonstrates that abortion restrictions were enacted for exactly the sort of wealth-transferring, monopoly-creating reasons that he finds unconstitutional in other contexts.