A Common Lawyer Looks at Supreme Court Constitutional Law | Richard Epstein
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A Common Lawyer Looks at Supreme Court Constitutional Law | Richard Epstein


First of all, I want to thank the Center for
inviting me back again. I spoke at a very effective conference in the 2013 to 2014;
and I was stunned by the level of turnout and interest the student body had here. And
I was asked to give a speech at BYU, and so I called them up and said, “Could we
have some kind of repeat?” And I’m very happy to say that we did. I also want to say that one of
the ways in which you become an original and creative mind and constitutional law
is not to teach the subject. I have taught constitutional war as a separate
course in my life, exactly two quarters. I spent one quarter
teaching something on the structural constitution, which for those of you who
think this is somewhat mysterious means how you put a government together with various
houses of Congress, separation of powers, and federalism, and another one on the
first amendment. The rest of the subject is to some extent TERRA INCOGNITO. I regard
this as an enormous advantage in doing a scholarship in constitutional law
because essentially it ties in with the basic theme of the title of this particular
election. And the title of the lecture, if I remembered correctly, is A Common Lawyer
Looks at Constitutional Law. Now as I was sitting down in that seat over there, that is now empty, I asked two students what they knew about common law and they told me they knew
of common law marriage. And I said, “Well that’s a start, but you probably need to know a little bit more
than that in order for this somewhat familiar and somewhat elusive phrase to
make some sense.” Am i doing something wrong? This somewhat familiar, but somewhat
elusive phrase because I think in effect it’s extremely important that you do it. The legal system that we have has essentially
several characteristics. One of them, which is court by the phrase common law,
is it means that this is the general law which is applicable to everybody in the
land. And there are many rules which of course specific to particular injuries,
of particular industries, or particular fields, but the common law, the sort of
general principles that is set to bind everybody. Second thing about the common
law, is that the principles that we’re talking about are made by judges or even by scholars. So that, if you were like me, a person who started his legal studies
with Roman law, which is the basis of much common law, you would discover that the
judges don’t have much to do with it. Sorry judge, the stuff was written by a
bunch of academics and scholars. And their opinions were then applied in particular cases, as a matter of what
they call natural, that is that body of law which does not relate to any
particular sovereign, but is the law which seems to commend itself to a cross
between reason, on the one hand, and custom on the other. The common law is
extremely broad and versatile; it covers a wide variety of rights and duties and
deals with a huge set of remedies. And so if you are a common lawyer, what you do
is you have to develop rules about individual liberty, and the reasons you
don’t have slavery. Then you have to figure out what these three people are
entitled to do, how they can acquire property, taking it is the usual answer, a bit more complicated, but basically right. Then you have to figure out how they can put their property to good use. Then you have to figure out how they can combine their property with the property or labor of other individuals with contracts, buying and selling
houses, forming partnerships and the like, even getting
married is a kind of contract. And then would you have to do is to make sure
that is people put these elaborate systems together by agreement nobody
from the outside can rip them asunder. And that’s called either the criminal
law or the tort law depending upon whether it is enforced by the state on the one hand,
or by private individuals on the other hand. And the basic norm of the tort law is
stunningly simple in ancient times, “Keep your hands to yourself,” is the inexact way
of stating it, “and do not engage in the threat or use of force against other
individuals,” is in fact the more precise way of putting it. And so would you do as a
good common lawyer is you try to develop the reasons and the explanations as to
how these systems are put together. I will give you here the four or five word
version of the subject, knowing that is capable some expansion, but the reason
why legal systems work as well as it does is the summary that I’m about to
give you now is 80% accurate. It’s the other 20% that requires those endless
volumes of law books that you see scattered throughout this library. And
the five words for are: force no, cooperation yes, presumption. That’s the whole speech. I’ll repeat it for
you so that you can now graduate from law school at the end of your sophomore
year: force no, cooperation yes, presumption. The first thing essentially says is
that the use of force in all its forms is essentially a destructive kind of
activity because what it does is it creates a system in which nobody can
feel secure in their personal property. If you understand that when you’re talking
about force you look around the room you have to be suspicious of everybody. It may well be that there’s only one person who
wants to harm you, but you can only be killed once. And so what happens is in a world
in which courses allow the fact that 99% of the people in the world are well
disposed for you means that your life expectancy goes up from 10 days to two
weeks. It does not protect you. And so the general social contract is to require
essential mutual disarmament and then you have to figure out how to put a
stake in place in order to enforce it. If you look at cooperation turns out it’s a
very different situation. I can’t raise my barn; you can’t raise your barn. But if I
hope you in the morning we can raise mine. If you help me in the afternoon we
can raise yours. Essentially the central proposition of “cooperation yes” is that
they’re a gains from trade. Two people put in something and each of them gets
out more than they put in and then lustful people, energetic people imagine
that the people will do this over and over again. So one of the things I like to tell
students when they are starting out is to ask the following question, “How
many contracts have you made today?” Have you look at me, sort of weird. What’s this
guy talking about? You’re not quite sure how you count. But if you count everything
that you do of a voluntary nature, as I indicated before the side conversation,
somebody lends you a pen and you return it. And that is the performance of a
contract of bailment, a phrase that you’ve never heard in your entire life.
Right? So what lawyers did originally is, what they did is, they watched what people did. They’re like biologists and they then catalog the various kinds of
arrangements that they did in partnerships, employment, sales, loans,
mortgages, and so forth, and developed the rules that govern each of these things. The common element of them all is they tend to create increased benefit
for everybody else two ways: one within the parties and two by giving greater
opportunities to other individuals. But law is a science of successive
approximation. So we get to our last word. The word is presumpt, and what that
means is too much of a good thing is a bad thing. So we want to have a rule which says, “force no.” And then somebody comes up to you and says, “Well somebody’s now
attacking you. You just have to take it and lie down and die.” You say, “No it’s
presumptively you can’t use it, but you could also use in self-defense or the
defense of a third person.” And then what you do is you develop a series of
justifications as to how and when force can be used. And what the word ordinarily
signifies, what the word presumably signifies is that a first approximation
is not the final state. But don’t despair, how many of you in this room have used force in self-defense
in the last 24 hours? The answer is probably virtually nobody under these kinds of symptoms. So
then you look at contracts generally they’re a good thing. What about a
contract to murder a third person? Not so good after all. Because the external losses
dominate the gains to their parties. So contract freedom is presumptive as well.
So that last word that you see in the common law formulation tells you that to use
the ways of the song “You’ve Only Just Begun.” When you start off with the first four
words and the fifth word is designed to tell you that there’s a long journey
ahead of you. And what happens is this, in ordinary social interactions the first four
words forwards generally do very very well. And then when something gets
screwed up you go to a lawyer, because they are the ones that have to tell you
whether the presumption holds, or is overridden, and overridden again. Most of what you
doing when they’re a social life you understand so well that you don’t even
know the rules that you follow and then when something hard you have to be able
to figure out how you put these rules together. Now there is a kind of deep irony about the
common law that I want to mention. This stuff is judge made and generally speaking in our
legal system we have a three-part hierarchy on which you might as well will commit to memory
( I see diligence students writing things down which is why I’m speaking
uncharacteristically slow). And the first and the lowest rank is the common law. On
top of that it turns out that there are statutes and the general rule in our legal system
is that the considered judgment of the legislature can modify, improve, or
displace the common law rules and put something in their place. And the kinds of statutes that you have can be very
complicated and extremely long. Let me just mention two types to you. One, there are what
they call codes. Somebody says, “Oh we’ve looked at the commercial practices and
sale and they seem to fall into a certain pattern. Let’s just try to codify
what everybody seems to have understood.” And then there are reform statutes which
come along and say, “We don’t like the way in which the gold industry is organized.
We’re gonna have to change it by legislation.” And when you look at these
statutes the rule is: statutes trump the common law. And here let me start to say to you that
with somebody like myself, who writes in that classical liberal constitution, we
start to distinguish very clearly between two kinds of statutes. When we start to think
about our third layer which is how the Constitution ties in with this, because
the common constitution is a common law system which is higher than a statute
which is higher than a common law. So what happens you get this peculiar
three-part later; you start at the bottom with common rules then you improve them
by statute then you see some of the statutes are unconstitutional because
they deviate from the common rules. This is a little bit dizzy to many people,
but in fact it is a fairly accurate description of what goes on. The question
is why does it start to make sense? Well take the middle layer dealing with
statues and see the way in which it is put together. And here are the kinds that
one white in both Roman law and an early English law was said to basically
perfect the common law rules by making them in ministry pool in a world filled
with all sorts of uncertainty. So to give you an example of what uncertainty might
look like: Everybody agrees that if I promise to sell you my house for $10,000
and you agree to buy that that sounds like the contract. But there are two serious problems
with respect to this kind of arrangement. One is after the fact that there may be an
enormous agreement or disagreement rather over whether or not we really did
strike a bargain? I would say it was just a preliminary negotiation. You will say
there’s a final arrangement. Each of us will give anecdotal conversation on it, and the
whole system will become essentially unsustainable because of the constant
factual problems. Which will in turn make people reluctant to enter into
transactions. I don’t to want to buy or sell a house. I don’t want to buy or sell a law suit. So what the judges do with the statutes do
is they create different ways to make these things more certain. So one statute
which is extremely important it’s a very old statute from the sixties seventies
in England adopted in every state in the United States today. And what it says in
its simplest form presumptively (you know that word now right?) is that promises to buy or
sell real estate are not enforceable unless they’re signed in writing by the party to
be charged (i.e) by the potential defendant, the party who sued the in the law suit. And since you never
know what whether you’re gonna be a point of a defendant in practice no deal is
complete as the contract until both parties have signed. Now this is formality.
This limits with you can do because you can’t create or oral anymore. But the
argument of the common lawyers is what we’re doing here is making both parties
better off by instituting a regime of greater certainty with easy formality,
but it’s not a statute which says you have to pay this much for the house or you
can’t pay more than that amount of the house. What it is, is you increase the
degree of freedom by increasing the degree of certainty. And so anybody who
believes in the common law rules of “cooperation yes” is grateful about these
statues because it increases the scope over which cooperation could take place.
One of the things that you will learn about contracts (if you should have the
study it) is there are some contracts that call for an immediate exchange. I
think many of you have purchased the newspaper. I don’t believe that you ever
signed a contract in writing before you did so. That’s because the money in the
paper changed hands essentially simultaneously. Can’t do that with real
estate. You need to have all sorts of inspections of title; all sorts of
inspections of the premises to make it go. And so the legal system develops formalities. It’s not just the statute of frauds. You
have to find the registration like a bulletin board. You put it down so the
same person can’t sell the same piece of property to ten different individuals.
So the early criminal laws approach was very sympathetic to statues that
increase the security of exchange. And if you start going back to the founding
philosophers, who are of such interest to the center of constitutional law here and
studies, it’s guys like Hugh and Lock and Madison and so forth. All of who or whom wrote in one
form or another that the security of possession and
exchange is one of the fundamental objects associated with the operation of
the law. Now the second kind of statute is in fact somewhat different from that,
and what it does it effectively says we see these kinds of common-law relationships, but we don’t
like what we see and we think in effect that we have to change the rules. So let
me give you an illustration of that kind of statute which is very much in the
news today. It certainly has to do with the minimum wage laws. What should it be?
How high should it be? Or you know the days there the maximum allowables. And
both of these today are extensively regulated by a statute which is called the
Fair Labor Standards Act which was passed in 1938 at the height of the new
deal by a very democratic congress which I’m happy to say was voted out of office
several months after these statutes were passed. But the statutes linger on even
after the legislators who voted for them are removed from office. Now what do
these statutes say? They said, we do not trust people to represent themselves involuntary
transactions. We do not accept the model “cooperation yes” because we don’t think
that these transactions are in fact transactions for mutual gains as between
the parties. And so what they want to say is we have to basically change the
fundamental distribution of rights that is exists as between these two parties.
And then you ask them why they willing to do so and the most common reason (the
only one I’ll talk about now) is that the inequality of bargaining power means
that the firm is so strong, relative to the individual, that the wages will leave
the worker worse off than they were if they had no contract at all under one
version or worse off than they would be if they could unionize and organize on
the other. Two very different types of positions. So the question you have to ask is what do you think about these statutes? Well these statutes are not designed to
expand the set of transactions that people can make voluntarily by giving
secure signposts as between the two parties and is against the rest of the
world. These statutes are designed to limit the contract choice in order to protect one
side against the advantage taking of the other. If you start to think about this as a good
common lawyer you don’t like these staffers. Now why is that? Well you look at
individuals and you say, “Are they being subject to misrepresentation and deceit?
Is somebody holding a gun to their head?And with respect to wage contracts when
people come back day after day if the deal is and what they wanted they won’t
return. So these contracts tend by and large to be things that people regard as in their
own judgment. So is it paternalism or worse for the state to
come back into town tell you, “You know something? You really worse off under
this contract even though you don’t know it so we’re gonna stop you from entering
into it.” And it’s not just these kinds of contracts. There are contracts for
example: You’d like to take medical services. Take a drug which is highly risky. Well
somebody mentioned Tom Griffin, friend of mine, he wrote a very famous opinion
called Abigail’s Alliance in which she upheld accurately (I’m sorry to say under current law) that the FDA can prevent you
from taking a drug that you and your doctors think to be necessary for the
preservation of your health because they know better than you do. That is, we accept the paternalism. And I
think most people actually know something about the field don’t think
the guys at the FDA know more than the personal doctors you get from Johns
Hopkins University, but that’s the way the world runs. So these are two very
different kinds of arrangements from the ones that I’ve talked about before. Now,
you now start to think about this as a constitutional matter. Is the legislature all
powerful in the way in which it starts to put together the way in which it
governs these arrangements? And at some level it’s somewhat when you say, “this cannot be,” because the
whole definition of constitutionalism is that you put into place certain kinds of major constraints on
what political bodies can do because ,frankly my dear, we don’t always trust
them to act for the public interest. Often they can be taken over as our friend, James
Madison, said. And if you’ve never read it run out to your nearest iPad and read it.
Federalist 10 that factions can take over government and make sure that the
legislation makes one group either a majority or minority win while the other
groups tend to lose. Whereas the statutes that I was talking about what the
statute of frauds and so forth all win-win all around. Everybody’s better off from secure
transactions; everybody is not better off with a higher minimum wage law or
with a direct prohibition on your ability to acquire drugs. Well now, how do you attack this constitutional?
Well there are two major kinds of provisions in the Constitution and you have to
figure out how you read them presumptively. And they are the structural provisions, what can the federal government
legislate on, and then they provisions about individual rights. What is it that
people cannot be told they can be forced to give up? That is, it’s their right even
against a majority of everybody but themselves. Answering these two
questions is a matter of profound political difficulty because we all
believe in individual rights, and we all believe in majority will, and it turns
out you can’t have both at the same time. You have to be able to figure out the
domain in which the rights dominate the common will and the other way around.
And if somebody comes to you and they say individual rights always prevail
you’re dealing with the snake-oil salesmen. And if it turns out somebody
says the collective good is always correct you’re dealing with another
snake oil salesman, maybe selling a different brand of snake oil, but it’s
the same plant. So how do we get to a constitution? Well there’s this nasty little problem about the constitution which is it contains words. This is a serious issue because you then have to figure out what these words mean. And I
will give you (before you get to the law school. That’s where you’re going) the following little piece of advice: When you
are talking amongst themselves and their no stakes on the table you know it all
these words mean all the time, but the moment you start making a dispute in
which money or liberty is at stake ambiguity in the minds of most people
will start to rule the waves. So lawyers say, “My god, we have no idea what you mean
by the phrase proximate cause I hope most of you in your lives have not heard
of it, at least to nonlawyers, but on the other hand you all understand what’s a punch in
the nose. And being able to figure out what the relationship between those two
things are is extremely important. If in fact you believe in the kind of advanced
linguistic skepticism that every word on the pressure dissolves into a senseless
agglomeration of sounds and runs then you’ve given up on constitutional law.
Either you believe that praises can have discernible inconsistent meanings as
they do in ordinary discourse, presumptively, or what you do is you
believe that every set of rules becomes the arbitrary commands of a sovereign
who’s accountable to nobody because there’s no way in which the bond. And
there’s never been a period in our history where people have consistently
taken the skeptical view. People will often change their views as to what is and is not a protected right, but if you’re a liberal Supreme Court Justice and the
matter is gay marriage this is an inalienable right given to you from the
beginning of time. If you are a conservative judge and you believe in
freedom of contract and economic affairs that is also a fundamental right. So the
two guys switch over one way or another. The question is how do we resolve? Well
there’s a famous article written many many years ago by a great philosopher
named J.L Austin and the title of this work is “What is the Meaning of a Word?”
And that seems very easy. And then Austin was a great philosopher because he says, “I can’t answer that question. It’s not a question of being more general like the
word building is more general than the word house. It’s you haven’t given me a
word for me to tell you the meaning of. If you ask me the question, ‘What is the meaning of
the word chair?,’ I can tell you it’s a seat with the back, and I don’t have to
commit myself to whether it has four legs or five or even three. Take off the back
it’s a stool. I can define both of those words; and then you have those funny case
where you get that little concave curb at the rear of the thing, and you don’t know whether it’s a fancy dance stool or a
really jazzy chair. And you know what? We could could spend our lives debating about it and
it’s something turned on it called ‘the chair tax’ we would be genuinely perplexed
as to how it would come out.” But most of these things fall relatively
straightforward into one clan. So in order to figure out what the Constitution means
you have to figure out what its words mean. And I have here Epstein’s law. You get
a dumb constitution and you’re an honest judge. You come up with a lot of dumb
results. His job is not to purify a stupid document;
his job is to explicate and to explain. If you have a good constitution you don’t
want to mess it up by changing its meaning. So, if your constitution says,”
there’s no such thing as private property,” because everything is owned by
the state. If you are in a marxist universe you better expect some very bad results
as you can’t keep me and thee separated. But our Constitution doesn’t say that. It says, “Nor shall private property be taken,” that is by originally the congress, “for public
use without just compensation.” So we protect private property, which somebody
else abolishes. Then if you look at other provisions in the Constitution
they, also, are short in terms of words used and profoundly difficult in terms
of their meeting. So if you take part of the First Amendment it protects freedom of
speech. You think you know what speech is, but
nobody today uses the word speech. They always jazz it up a bit to cover
expression. And why is that? Because they don’t want dancing or art to be out from
the thing simply because somebody isn’t moving his mouth or writing. And indeed
could you imagine a genius constitutional lawyer saying, “Well we protect the freedom of the speech, but that’s only oral stuff so if you write something down
you have no constitutional protection at all unless you’re a member of the press.
You’re not impressed, I hope. That’s because these words are complicated. That’s why you have to always worry about a government which is about to do you in by reading something excessively narrowly in order to get around. So I now call
this the Noah principle, in honor of my now six-year-old grandson, who was
completely aware of this when he was four years old. So I go to Noah and he’s acting particularly badly and I
said no you’re not allowed to hit anybody. He looks at me and he takes
it all in and two seconds later, with a sly grin on his face, he kicks me. You didn’t say anything about that grandpa. So its not covered by the prohibition. Now the interesting thing is that the smile knew
that he understood the linguistic conventions associated with the word hit
and he knew it was breaking the rules. He found that there was a certain
psychic game that taking after his law professor grandfather under these
circumstances. You all know those games as well, because you played them as well in your own life. What happens is
you have these terms and now all of a sudden you have to figure out what they
mean. If you say that the legislature can give them any meaning that they want it
ceases to be a constitution. Well where did these terms get them meaning any how?
Well, remeber we talked about those early judges in those early Roman jurist who started
the talk about these things. What they did is they gave you a
definition of what was private property. and they would talk about a thing and
they would give you it’s attributes for ownership. If you’re talking about land, there was the famous at Coy Lemaxum. You don’t know what that means. It means if you own the surface of the land you own to the top of the heavens into the depths of the earth. It wasn’t Roman origin, but it has a
physical spacial situation. On the other hand, if I take my iphone out of my
pocket nobody says by virtue of the fact that I own this iPhone the world to the top down to the bottom
right? That goes to the guy who owns the land ownership. A little bit different for channels from what they are from real property. Then you have to figure out what would you do with this land? And so we say, “What property is is
the right to exclude others.” That’s not a bad start. Doesn’t explain water. Different problem.
But it certainly helps explain when my home is my castle you can’t come in, but
if the only thing you think landing bodies is the right to exclude then you can keep other people off.
Not so clear you can enter the land yourself at all. So now I have to imagine a system in
which the right to exclude is a sole dimension of property, but going on the
property can be prohibited by the state. Just at willy nilly. And then you say, “Well how valuable with this property be if nobody can use it?”
Unless the state and I agree how it ought to be done they can get in and I can’t get in either. So most
people say, “No you take possession of the land. Well it was great the take possession of the land, but now
you’re allowed to sit on the land, but you know you’re not allowed to use it. This is
not going to be very valuable. You can’t farm it. You can’t build on it. So then people say, “Hey, you’ve got to tack on use rights and development rights.” But then we
started to talk about our friend cooperation. Well, gotta be able to cooperate. Gotta be
able to borrow money to build a house. Gotta be able to pay somebody wages to do something on the house. You gotta be able to rent it out to somebody for a
particular purpose. So all of a sudden this institution of private property takes on
its common law form and it turns out to be a surprisingly robust arrangement in
terms of the protections that it starts to give to individuals. And if you’re one
of these guys who don’t like the system of private property and like the
administrative state. This becomes a serious obstacle to what you want to do. So
essentially what happens is when you talk about this or freedom of speech, or the free exercise of religion. All of a sudden you see how strange the pyramid is. The common law rules that the bottom of
this place by legislation legislation and then as you start moving up a level
it turns out that these rules in turn are now gonna be displaced by constitutional
norms that we instantiate the common law rules subject to those rules which are
fine which stabilize common-law relationships. So when I common lawyer looks at the Constitution what the
fellow says is, “We look at the Constitution just the way our friend Gaius did when he wrote
about natural law and statutes in 160 A.D. He said, “Look, these basic relationships are so
powerful that you can’t let the state arbitrarily define. It will not do to
have a government come along and says, “We think that private property means that
if you own a house every Thursday you’re allowed to introduce 15 minutes. That’s
our new definition of private property.” Can’t do that. You gotta worry about
possessions. You gotta worry about use. Gotta worry about sells. Then somebody says, “What about access?” And
it turns out you develop a huge body of law as to whether or not when the
government bills and changes and authors its streets. Can it make it so difficult for
you to enter your land that that’s taking even though they don’t come off.
And they gotta compensate. So you have all of these terms one after they start to build up. Give you
another illustration. What’s the free exercise of religion? Well this is a very hot topic today. We have
the Religious Freedom Restoration Act which everybody loved in the year 1993
and which the Liberals have repudiated in 2015. Right? And it’s supposed to protect the free exercise
of religion. And if you’re somebody who doesn’t like religion free exercise
means you have the right to worship God in whatever way you see fit. But it
doesn’t apply to the way in which you lead other features of your life. So for
example: Does it tell you when you when you can pray? Yes. Does it tell you how
you can organize your workshop and whom you can do business with or whether or
not you can be forced when you go into government service to eat foods that are
against your religious belief? That’s not worship; that’s just eating. Not protected. To
somebody who looks at it and it’s quote “natural meaning” seems to have other
meaning. Anything that I do which is part of my religion is part of its exercise. It’s not just prayer, and it’s not just
thought. And so then I come up to you and say, “Okay. Part of my religion involves child sacrifice
and preferably children of other religions.” And then somebody says, “Well that’s the free exercise of religion.” And
then you have to remember that dirty little word. What word do you have to
remember? Presumptively. Well, what’s the presumption? The
presumption that we have under the classical liberal constitution is that
you’re entitled to essentially do whatever you want with your own property
so long as you do not use a threatened force against other individuals. That was
a basic norm. That’s the norm that kept society together. That’s the norm which
essentially says that you can not decide to run jihad or crusades under the banner of religion if
you wish to take innocent life. You ask yourself, “Do you really want to get rid
of that particular exception?” Well the answer is “No.” Can you really say that killing somebody
in accordance with your religious command isn’t the free exercise of
religion? You can’t say that either. And so this starts to lead to how constitutional
words work. Essentially what happens is you got the basic words like you can’t take
and you can’t hit. And you have to remember my nephews law: We don’t allow
you to have cheap circumvention of it. So in Roman days and today someone says, “I didn’t hit
you. I just set a trap. I’ve hid it and concealed it. You walked into it. You killed yourself,
because you took the last step.” And everybody’s looking at me and I see a few
normas giggles in the crowd. That’s because this is not funny, this is tragic. That anybody
would want to make that argument because we’re always worried about how people
will try to circumvent commands that are designed to protect other individuals.
And your interpretation has to cover that. We’ve seen it with force and we’ve
also seen it a moment ago when we were starting to talk about “expression” as
being the term that we use instead of the narrow term “speech.” And we do this
not because the text commands it, but because if you go back
to the natural law theories and the common law theories and undermining
that’s the way they worked as well. Every single rule that I’m talking about now was fully articulated and fully
understood in ancient Rome. That is, we tend to think of these guys as naive, they don’t
know very much, but if you go back, as I do, and you teach Roman law text-by-text, page-by-page all of a sudden it becomes clear that these jokers understood exactly what they were doing.
So now this common law constitution gets more complicated, because we have our first problem figuring out how we read the coverage
provisions. We can’t be too literal about them, because substitution or
circumvention becomes too easy and the entire tax code is designed to prevent
people from circumventing the duties to pay taxes. You gotta worry about this
with government and then the other part of constitutional law that you also have
to worry about is that part of the constitution that is written in invisible ink.
That does not seem very encouraging, right? So let me tell you just how indelible
the invisible turns out to be. If you go back and you read every 19th and early
20th century treatise what you will find is that their title contains somewhere
in it the words police power. Then when you do is you pick up your constitution.
You don’t have to read it anymore; you just run a search function through that
with the word police and you come up empty. Not there. No police power whatsoever. So then you
have to ask yourself the question, “Why is it that a word or phrase that is not in
the Constitution turns out to be the central phraise of analysis of the
Constitution long before we get to modern socialism and modern gimmickry. Well, it’s because of the illustrations that I gave you. Which is,
if you were a private party you wanted to essentially develop your
own land and the only way you could do it was to put an exhaust pipe into your
neighbors living room emitting carbon monoxide somebody would
say development is fine, but the creation of a nuisance is not. And so
when the common law starts to develop into the public or what we do is we
follow the same compositions. Whatever is bad conduct between two private parties
is bad conduct which the state can protect against, because the private
remedies don’t work. So remember when we started to talk about why it is that we
had writing requirements for contracts it was because otherwise they didn’t work.
If you have somebody who’s polluting an entire neighborhood it turns out private
rights of action don’t work. You don’t believe me? Look at Flint, and ask yourself,
“How a bunch of lawsuits are going to work as opposed to a decent system of public government?” Which
means that neither the state nor private parties could put lead into drinking water given the fact of its horrific effects on
mental development, most skill coordination, and everywhere else you think about. So what you
want to do is to have a state which can prevent these kinds of things and when
they talk about the police power as a way to protect health and safety that’s
essentially the pale from the proposition that we do not allow people
to do whatever they want when it comes to government, because we do not allow
people to do whatever they want when it comes to each other. And the corollative is
if the people can’t do it to each other then by all means please don’t say
that the state can do it to us. And why is this important? If you look at the two
most important recent environmental disasters both of them are government made.
The folks from the EPA managed to blow up a system of caves and created an amount
of pollution in the Animas River in Colorado worse than anything that has
ever been done. For which the EPA had Gina McCarthy said, “I’m sorry and all is well.” You look at Flint, what you do is you have a classic intiment of
cooperative federalism where city says, “It’s the state,” and the state
says, “It’s the national government.” And this agency says, “It’s that agency.” And the
whole thing degenerates, because nobody was able to do it right. And so what you
have to do is to understand that putting the government together its first job is
to prevent these miserable nuisances from taking place and the second is to
make sure that they don’t become the very aggressive in this area that they
by engaging in conduct that the sort that you would never tolerate in private
individuals. So now you see why constitutional law turns out to be an
extremely difficult subject. You got all of these things about how it is you have
implied limitations on the individual rights. You have to put the state in
charge of their control, and then you have to worry about the fact that the
state who’s in charge of the system may make it worse, because the individuals
who govern may not be accountable for the wrongs that they start to commit. So
what does this then start to tell you about how the business goes. It says in effect when you’re
dealing with areas of commission and omission you never reached the sweet
spot in which you’re sure that you got the right mix of private rights of
action the nuisance, public controls over nuisance, public controls over the public
officials who administer the judicial system with a regulatory state, it’s always in flux.
So what happens is you now see that you switch the way in which you think about
government. In the beginning it was high theory. In the beginning it was normative inquire. Now
it’s a question of remedy instruction in which errors in every direction are
conceivable. You try to plug one hole up, another ones created. An old friend of
mine said many many years ago when I was first starting to teach tort law, he said,
“You think of the government and society as the ship; and you think of all the
planks which are fixed, robust, and protected and the boat is going swimmingly over the water.
But you have to understand it’s going in very choppy seas and with very dangerous
folks surrounded it. And the question you have to ask about your institutions is,
“How many blows below the waterline can take without filling up so much that
it sinks?” So the argument essentially about statecraft is you know you’re always
going to make errors no matter which way you move, but you also know that some areas are bigger than other areas and then you have to know which areas are the
biggest of all. So when I started law, (and I’ll end on this point so you have some questions) essentially, I was what they call a concepts man. I try to figure
out what the meaning of possession was, the meaning of proximate cause was, the
meaning of consideration, that’s what’s a bargain what’s not, the meaning of
possession of these wonderful words. And you can make a lot of progress, but when
you switch from entitlements to institutions you have to develop a very
different frame of mind. Now you’re worried about design, you worried about
people gaming systems, you’re worried about observable behaviors, the
simplicity of remedies, whether or not it’s better to regulate too little or
too much, whether it’s regulated at this level or at that level, and that’s the
work of a lifetime. Why is it that I’m so unhappy today
about what’s constitutional law? It’s because I think the people who do this get the wrong major premise. What they do
is they assume that courts know everything or that the legislature kind of
knows everything, but there’s no deus ex machina. Ultimately an office and the
judges have to have the last word and that means they have to develop
reasonably coherent theories as to when they want to put the kibosh on somebody
and when not. And if they realize that when ever the government starts to allow force that
ought to be prevented that’s a bad thing. And whenever it turns
out that they negate cooperation the latter they have to have a very strong
reason for overriding it and the same thing with the initial presumption and what’s
characteristic of the modern state is that the willingness to override
“cooperation yes” and “harm no” turns out to be all too willing. And it’s
in that particular frame of mind that we see the serious challenge today in the
progressive year of the classical liberal constitution. That at painful length I
defend in the book that’s over there. I hope that freshmen could read it, and that adults can read it. I hope the book is written clearly enough, but I hope too that whether you read the book or not that the basic measure of
intellectual simplicity on entitlements and intellectual complexity on
institutions and remedies is one that you take with you through your further
studies.

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