Epstein, Richard

libtard

NTBCW ALEX GENZ CLIMATE DENIER

pow mofo pending

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Mortal Peril: Our Inalienable Right to Health Care?

Amazon.com

https://www.amazon.com › Mortal-Peril-Inalienable-Rig...](https://www.amazon.com/Mortal-Peril-Inalienable-Right-Health/dp/0738201898)

In this seminal work, distinguished legal scholar Richard Epstein daringly refutes the assumption that health care is a "right" that should be available to all ...

$24.38 · In stock · 4.2(4)

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:{covid fail

Talk:Richard Epstein - Wikipedia

...Should Epstein's coronavirus comments be covered?

:{The editor "White whirlwind" removed all content sourced to a New Yorker interview where Epstein elaborated on his reckless coronavirus gibberish, which influenced the Trump administration's response to the coronavirus pandemic. The content is obviously DUE, and it's hard to think of content that's more DUE than a man who influenced a White House administration's response to an enormous crisis explaining his thinking in a solid RS, such as the New Yorker.

The editor removed it because the content was "far too much possibly biased coverage", which is just another way of saying that this editor personally disagrees with the content and seeks to whitewash it. It should be restored immediately. Snooganssnoogans (talk) 12:26, 30 March 2020 (UTC)[reply]}:

:{You don't have to refer to me in scare quotes, try a simple template or message on my talk page. Your history shows you've been around long enough to know that.Anyway, your argument is weak on several fronts. I didn't say The New Yorker wasn't generally reliable, I said a Q&A interview on such a topic is unreliable for so much content of that type. The DUE argument is preposterous—no intelligent editor could plausibly argue that one of the most cited legal scholars of the 20th and 21st centuries needs three-plus paragraphs (including quotes) on a story whose current Google Trends score barely approaches what it got last summer when Epstein starting representing some parties opposing the Obama Presidential Library site, a not-very-notable story that isn't even mentioned anywhere in this article at present.

The level of detail is a classic example of undue weight described at DUE, which instructs us to "treat each aspect with a weight proportional to its treatment in the body of reliable, published material on the subject." I'm not saying that at some point in the future this section might not be expanded. Rather, I'm saying that it isn't warranted based on one Q&A article.

Take your time and wait for the sources at large to comprehensively evaluate. Wikipedia is not a newspaper (WP:NOTNEWSPAPER). The fact that we're all unpaid volunteers doesn't mean that our editing has to be amateurish. White Whirlwind 咨 03:36, 31 March 2020 (UTC)[reply]Since he is spreading really, really, really stupid and dangerous misinformation, a fact which is extremely obvious to anybody with a smidgen of scientific knowledge, this is important and needs more coverage. The man has particularly virulent form of Dunning-Kruger, drifting into delusions of grandeur, and he will kill people with it. See also [1].}:

....

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AN 6 25

Countless Democrats are vehemently critical of the steep tariffs that President Donald Trump is imposing on the United States' trading partners, warning that a variety of imported goods are going to get a lot more expensive in the months ahead. But criticism is coming from parts of the right as well, including some conservative and libertarian legal scholars.

According to New York Times legal reporter Adam Liptak, a friend-of-the-court brief submitted back in April laid out right-wing concerns about Trump's trade policy.

Those who signed the brief, which was filed in the U.S. Court of International Trade, included, among others, Steven G. Calabresi, who was a founder of the Federalist Society in the early 1980s; former U.S. Attorney General Michael B. Mukasey; and Richard Epstein, a libertarian legal scholar at New York University. The brief, Liptak reports, was prepared by Michael W. McConnell, who now teaches at Stanford Law School in California and is an ex-federal appeals court judge appointed by former President George W. Bush.

Epstein told the Times, "You have to understand that the conservative movement is now, as an intellectual movement, consistently anti-Trump on most issues."

IFrame Content

Some liberals and progressives, according to Liptak, signed the brief as well, including Yale University law professor Harold Koh. But much of the participation came from the right.

Ilya Somin, a law professor at George Mason University in Virginia, told the Times, "The brief unites big-name constitutional law scholars across the political spectrum in a way I have rarely seen. I never would have expected to see Richard Epstein, Steve Calabresi and Harold Koh all on the same brief on a major issue. But here they are, together, opposing 'taxation by proclamation.' Donald Trump brought them together."

One of the brief's main criticisms of Trump's trade policy is that he carrying it out by executive order and failing to get Congress' input.

The brief read, "The powers to tax, to regulate commerce and to shape the nation's economic course must remain with Congress. They cannot drift silently into the hands of the president through inertia, inattention or creative readings of statutes never meant to grant such authority. That conviction is not partisan. It is constitutional. And it strikes at the heart of this case."

*Read Adam Liptak's full New York Times article at this link (subscription required).

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:{:{===}:

aha: ideol entre/flak/think tankers on call 24/7 to mouth useful BS to admin and corps; they have to preserve rep b/c it's their revenue stream, so will attack critics:

https://www.alternet.org/2020/03/meet-the-expert-whose-scientific-study-informed-trumps-do-nothing-pandemic-response/

no lnx

Meet the ‘expert’ whose ‘scientific study’ informed Trump’s do-nothing pandemic response

Written by Daily Kos March 31, 2020

It seems like years, but it was only one week ago that Donald Trump, impatient at the fact that the COVID-19 pandemic was taking up so much of his precious time, declared he was considering steps to cut back on attempts to prevent the virus from spreading.

After viewing an uninformed rant on Fox News, and pounding out a hysterical Tweet, declaring that “WE CANNOT LET THE CURE BE WORSE THAN THE PROBLEM ITSELF,” Trump held a news conference in which he reiterated what was apparently passing for the “common wisdom” at the White House that morning. “America will again — and soon — be open for business,” he said. “Very soon, a lot sooner than three or four months that somebody was suggesting. A lot sooner. We cannot let the cure be worse than the problem itself.”

The very same day, the Washington Post also reported on a scientific article that was being circulated back and forth in emails between “numerous administration officials” at this time (no doubt with subject headings like: “Read this now!”):

Conservatives close to Trump and numerous administration officials have been circulating an article by Richard A. Epstein of the Hoover Institution, titled “Coronavirus Perspective,” that plays down the extent of the spread and the threat.

As any lawyer will tell you, it is not difficult to find an “expert” willing to spout out the most far-fetched “scientific-based” balderdash imaginable. It’s often simply a matter of cloaking that balderdash in calculated, impressive-sounding terminology, designed to hide the fact that it is written to achieve whatever desired result a particular client wants. As reported by Isaac Chotiner for the New Yorker, this particular article authored by Richard Epstein for the conservative Hoover Institution think-tank, fit the administration’s political needs to a tee.

Epstein, a professor at New York University School of Law, published the article on the Web site of the Hoover Institution, on March 16th. In it, he questioned the World Health Organization’s decision to declare the coronavirus outbreak a pandemic, said that “public officials have gone overboard,” and suggested that about five hundred people would die from COVID-19 in the U.S. Epstein later updated his estimate to five thousand, saying that the previous number had been an error.

(emphasis supplied)

When you have to “update” your conclusions to reflect an error you made by tenfold, that’s what we would call a “red flag” (the current death toll in the U.S. from COVID is already over 2000, with credible sources estimating we may be looking at 100-200,000 dead, or possibly many more). In fact, had Epstein stopped there he could have retreated into his think tank in relative obscurity, deleted the paper from the public memory and lived out a happy life as only a vaguely remembered fool with respect to the worst pandemic to strike the planet in over a century.

But like many people with oversized, prickly egos, unaccustomed to having their work revealed as faulty and error-filled, Epstein, who Chotiner describes as a “one of the most cited legal scholars in the country,” and notable for his “libertarian-minded reading of the Constitution,” just couldn’t leave well enough alone. He just had to set the record straight.

So he compounded his error by making an even more colossal blunder: he granted an interview to the New Yorker. What followed is one of the most devastating portrayals of a purveyor of “junk science” that can be imagined.

After apologizing for his “stupid” error in projecting the number of U.S. fatalities, which he characterizes as “the single worst public-relations gaffe I’ve made in my entire life,” Epstein then proceeds to mount an arrogant, pompous and error-filled defense of his methodology (“the question to ask, Isaac, is not whether I chose the right number but whether I had the right model.”)

After acknowledging the glaring, fundamental errors in his fatality estimates, Epstein revealed some of the glaring, fundamental errors underlying his assumptions. Helpfully, the New Yorker article adds brackets which identify Epstein’s errors, and provide correct information.

First, we realize that Epstein doesn’t even have a basic understanding of the nature of COVID-19:

[Epstein]: And so you take a population like in Kirkland, which is fragile and old, you get somebody in who has a strong version of the virus, and the thing will just absolutely rip through the population and kill everybody in it within a very short period of time. [Daniel Kuritzkes, the chief of the infectious-diseases division at Brigham and Women’s Hospital, in Boston, said, after being read this passage, “There’s no evidence that there are strong and weak variations of the coronavirus circulating. There may be minor variations person to person or location to location in the actual genetic sequence, but there is no evidence that they have different virulence or that a less virulent version is overtaking a more virulent version.”]

Next, Epstein reveals he lacks a basic understanding of how the virus is transmitted. For example, he attributes the high death toll in Washington State to the fact that people in that state “probably” received “large doses” of the virus through “hugging and kissing” the residents of the Kirkland Life Care facility, where COVID-19 was first identified in that state:

[Epstein]: And Washington State had a very high peak early on. And, probably, most of the deaths that we have today, if you went through and chased them down, were either people who are in the facility or people who have family members who hugged and kissed people in the facility. So they got large doses of intense viruses. [Albert Ko, a professor of epidemiology and medicine and the department chair at the Yale School of Public Health, responded, “There is no evidence that you have a higher risk of dying from contact from someone in the facility than if you had contact from some other source.”]

(emphasis supplied)

Epstein, who is neither a virologist, an epidemiologist, nor a physician, then opines that a “change in genetic viral behavior” along with changes in human behavior would lead to an “adaptation,” altering the course of the virus. In his view, the failure to consider such “adaptation” led to overreaction among state governors to the potential impact of the virus:

[Chotiner]:You wrote, “The adaptive responses should reduce the exposures in the high-risk groups, given the tendency for the coronavirus to weaken over time.” What tendency are you talking about, and how do we know it will weaken over time?

[Epstein]: Well, what happens is it’s an evolutionary tendency. [“There is absolutely no evidence for that,” Ko told me. According to Kuritzkes, “There is no proof that this is the case. To the extent we see that evolution taking place it is usually over a much vaster timescale.”]

He then repeats that he assumed the coronavirus would weaken over time: “This tendency takes time. It could be a week. It could be a month. It could be longer. But, in the end, you should expect something of this particular sort to take place.”

In fact, Epstein says he knows of “no exception” to the rule that such viruses weaken over time. Unfortunately, he’s wrong here as well:

[Epstein]: Over time, yes. And is this a hundred-per-cent tendency? No. Is there any known exception to it? No. [“We did not see SARS or Ebola weaken over time,” Kuritzkes said. “It is only appropriate public-health measures or vaccines that have helped to control those epidemics.”]

So up to this point, we’ve determined that Epstein doesn’t understand the nature of the virus, doesn’t understand what happened in Washington State (which he relied on in his model of the virus’ transmission), and doesn’t understand that the virus will not necessarily “weaken over time.” In short, his conclusions and the methodology underlying them are sheer garbage.

But it is the exchange at the end of the interview between Chotiner and Epstein that is the most revealing:

[Chotiner]: I know, but these are scientific issues here.

[Epstein]: You know nothing about the subject but are so confident that you’re going to say that I’m a crackpot.

No. Richard—

That’s what you’re saying, isn’t it? That’s what you’re saying?

I’m not saying anything of the sort.

Admit to it. You’re saying I’m a crackpot.

I’m not saying anything of the—

Well, what am I then? I’m an amateur? You’re the great scholar on this?

No, no. I’m not a great scholar on this.

Tell me what you think about the quality of the work!

O.K. I’m going to tell you. I think the fact that I am not a great scholar on this and I’m able to find these flaws or these holes in what you wrote is a sign that maybe you should’ve thought harder before writing it.

What it shows is that you are a complete intellectual amateur. Period.

O.K. Can I ask you one more question?

You just don’t know anything about anything. You’re a journalist. Would you like to compare your résumé to mine?

No, actually, I would not.

Then good. Then maybe what you want to do is to say, “Gee, I’m not quite sure that this is right. I’m going to check with somebody else.” But, you want to come at me hard, I am going to come back harder at you. And then if I can’t jam my fingers down your throat, then I am not worth it. But you have basically gone over the line. If you want to ask questions, ask questions. I put forward a model. But a little bit of respect.

O.K. Let me ask you this question. All my questions are asked with respect.

That’s not the way I hear it.

At this point, Epstein finally gets something right: this is the ranting of an egotistical crackpot who has been caught flat-footed and is attempting to defend his own incompetence, by attacking his interlocutor as “an intellectual amateur,” whose resume cannot possibly compete with his own.

This would be comical if lives weren’t at stake. But by relying on this incompetent charlatan to inform public policy (policy which has been followed by at least some Republican governors in creating their own state’s response to the pandemic), the Trump administration may have caused hundreds if not thousands of additional deaths.

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fed soc

The Rise of Environmental Nuisance Litigation: Can Municipalities Sue Oil Companies for Climate Change?

The Cornell Club

6 E 44th Street

New York, NY 10017

Speakers:

David Bookbinder • Lindsey M. De La Torre • Richard A. Epstein

Topics:

Environmental & Energy Law • Litigation

Sponsors:

New York City Young Lawyers Chapter

Public Nuisance, Climate Change, and Municipal Litigation

Oct

2018

Wednesday

4:30 p.m.

EDT

Public Nuisance, Climate Change, and Municipal Litigation

Boston Lawyers Chapter

Omni Parker House

60 School St.

Boston, MA 02108

Speakers:

Lindsey M. De La Torre • Steven Ferrey • Philip S. Goldberg • Donald J. Kochan • James R. May • Kenneth Reich

Topics:

Environmental Law & Property Rights

Sponsors:

Boston Lawyers Chapter

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3 25

A Balance Sheet For Global Warming

Hoover Institution

https://www.hoover.org › research › balance-sheet-glob...

Nov 5, 2024 — A global 50 percent reduction in GHG emissions implemented immediately and maintained strictly would reduce global temperatures in 2100 by 0.687°C.

AI Overview

Richard Epstein, a law and economics scholar, is known for his skepticism regarding the severity of the climate crisis and his arguments against aggressive climate policies, often emphasizing the potential economic costs and the need for a "wait and see" approach.

Here's a more detailed look at his views:

Skepticism about the severity of climate change:

Epstein argues that the potential harms from global warming are overstated and that the costs of mitigation efforts could be significant.

Emphasis on economic costs:

He highlights the potential economic disruptions and costs associated with transitioning away from fossil fuels and implementing stringent climate policies.

"Wait and see" approach:

Epstein advocates for a cautious approach, suggesting that we should observe the actual effects of climate change and make decisions based on evidence rather than rushing into potentially costly actions.

Criticism of climate activism:

He has criticized what he sees as "hysteria" surrounding climate change and the actions of some climate activists.

Focus on natural variability:

Epstein points out that the Earth has experienced significant climate changes in the past, both naturally and due to human activities, suggesting that the current climate changes are not necessarily unprecedented or solely due to human emissions.

Opposition to climate reparations:

Epstein has argued against the idea of climate reparations, suggesting that there is no clear basis for such payments and that they could have unintended consequences.

Examples of his arguments:

He has argued that the Paris Agreement may not be effective in reducing emissions and that withdrawal from the agreement would not necessarily harm the environment.

He has questioned the validity of the "social cost of carbon" calculations, which are used to estimate the economic damages of climate change.

He has argued that the current situation is not an emergency and that there is no compelling evidence of an impending climate catastrophe.

"Carbon Dioxide: Our Newest Pollutant" by Richard A. Epstein

Chicago Unbound

https://chicagounbound.uchicago.edu › law_and_econo...

by RA Epstein · 2010 · Cited by 19 — The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly established and domestic American initiatives are in ...

Fallacies in the Design of Climate Change Policies

Texas A&M

https://scholarship.law.tamu.edu › cgi › viewcontent

PDF

by RL Revesz · 2023 · Cited by 1 — This Essay criticizes Professor Richard Epstein's approach to climate change regulation, which he characterizes as one involving taking mod-.

Global Warming: How Not To Respond

Hoover Institution

https://www.hoover.org › research › global-warming-h...

Koonin expand on Richard Epstein's comments. He is a climate scientist who while agreeing that the climate is changing he is not convinced ,based ...

"Climate Change Policies" by Richard L. Revesz

Texas A&M

https://scholarship.law.tamu.edu › lawreview › vol10 › iss3

by RL Revesz · 2023 · Cited by 1 — This Essay criticizes Professor Richard Epstein's approach to climate change regulation, which he characterizes as one involving taking modest steps at first, ...

Missing: global ‎warming

===

mofo

unfair-swipe-federalist-society

11 23

It looks as if the next presidential election—less than a year away—will feature a rerun between two road-tested candidates: President Joe Biden and former president Donald Trump, who at present seem, with all their evident flaws, to push other candidates aside. Not only does Trump lead in the run-up to the Republican primary, but, contrary to many expectations, he seems to have edged into the lead against Biden for the general election.

:{:{It is no surprise that columns in the New York Times seek to bolster Democratic fortunes. A recent heartfelt op-ed in the Times by three veteran Trump opponents—George Conway, J. Michael Luttig, and Barbara Comstock—seeks to bolster Democratic fortunes. They insist that re-electing the former president could undermine the Constitution, the rule of law, the independence of the courts, and much else besides.}:

They offer no specifics to document these claims, and maintain a conspicuous silence about any activities of the Biden administration that arguably flout these very principles, such as its overgenerous use of executive orders on such matters as student loan forgiveness and the use of fossil fuels, which undermine the separation of powers; as well as the attacks on conservative Supreme Court justices, coupled with dangerous suggestions by Senator Sheldon Whitehouse of Rhode Island, who has denounced a Code of Conduct recently released by the Supreme Court. Whitehouse proposes: “My ethics bill would create a transparent process for complaints and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints.”

But, as the Wall Street Journal noted editorially, this move would inspire an endless array of public complaints, many generated by Whitehouse’s loyalists, to be investigated under uncertain procedures that clearly amount to the politicization of the judiciary and an assault on the independence of the Supreme Court. Just how would those justices operate, knowing that their legal decisions are subject to the review by the judges whose work they are supposed to review? And to whom are these recommendations made, and for what purpose?}:

The most bizarre claim in the Times op-ed is to point an accusing finger at the Federalist Society (with whom I have worked closely since its inception over forty years ago), as derelict in failing to control the asserted dangerous activities of any planned Trump administration. The charge wholly misunderstands the role that the society has played as an incubator of conservative and libertarian lawyers—who, for all their differences on such key long-standing issues as judicial review and the protection of speech and property rights, will never be mistaken for the progressive rivals.

The distinctive role of the Federalist Society is to steer clear of immediate political controversies that are properly the function of other think tanks and institutes on both sides of the political aisle. That neutral position allows the society to be a platform for both liberal and conservative scholars, judges, lawyers, and public servants to debate various issues on the merits, knowing that the society will take no collective position on any issue once the discussion is over. This long-held policy allowed the society to open itself up to a large number of divergent views long before Trump became a fixture on the legal scene—and long after he departs from it.

For the authors to call nameless Republican lawyers part of “a growing crowd of grifters, frauds, and con men willing to subvert the Constitution” is a classic form of group defamation that reflects more on them than on their supposed targets, who have divergent views on both the abstract merits of a Trump presidency and any choice between Biden and Trump. There is, however, one reason for Conway, Luttig, and Comstock to use an attack on the Federal Society as a forum in which to vent their political positions: these three individuals work with and for other institutions that do take these kinds of political positions.

In this connection, it is instructive to look more closely at the recent proceedings of the Federalist Society that took place before a sell-out crowd in mid-November in Washington, DC, which included debate on the timeless question of “Originalism on the Ground,” which covered the way this doctrine has played out in a variety of different areas—corporations, antitrust, intellectual property, and more. The highlight of the event was the impassioned speech, somewhat out of character for the society, that writer and former New York Times columnist Bari Weiss delivered to thunderous approval in support of Israel in its ongoing war with Hamas, which did not meet with pro-Palestinian protest of any kind. During that speech and at other events, Donald Trump was not a topic of discussion.}:

The one exception was a spirited discussion between Professor Will Baude of the University of Chicago and Professor Michael McConnell of Stanford on whether the strength of the current charges that Trump had “engaged in an insurrection” requires that Trump be kept off the ballot in 2024, which Baude supported and McConnell opposed. That division was somewhat ironic because the three authors of the Times op-ed designated Professor McConnell and Judge Thomas Griffith (who delivered the annual Bork Lecture) as exemplar conservative scholars.}:

On the Saturday Rosenkranz lunch, I had a spirited debate with Clark Neily of the Cato Institute on the question of whether “States Can Constitutionally Regulate the Content Moderation Policies of Facebook and Twitter.” One reason this debate held the audience was that it pitted a strong libertarian (who insisted that the government keep its hands off the key media companies on the ground that its intervention will only make matters worse) against the rival position in favor of some regulation—in the form of a nondiscrimination rule—that opens the forum to both sides of any issue while allowing the platforms to keep immoral, vulgar, or slanderous material off their sites. }:}:

As we have learned through long experience, a stronger debate often emerges between individuals who generally have a similar worldview (a presumption against state interference), and thus argue over the circumstances that justify such intervention. I therefore find it deeply ironic that our three authors have called for a return to “fundamental classical liberal tenets of our republican form of government,” which I have long championed.}:

But when one looks at the website of the Society for the Rule of Law, a skeleton organization that lists the members of the board and some links to recent publications, it becomes clear that the organization has a long way to go to bulk up to be a serious player in the national debate, which must develop a program that will be relevant once Trump leaves the political stage. There is no way that this threadbare website could become the basis for a new organization that fosters new scholarship if its mission is “to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps.” Meaning what? No toleration of diverging positions on abortion, guns, affirmative action, or voting rights?

A telling sign of the nature of this anti-Federalist Society movement is their activities elsewhere. As I have already discussed with respect to the claims of insurrection, there are powerful reason to think that the president who is responsible for the appointment of all officers under the Appointments Clause is himself notan officer who is caught under Section 3 of the Fourteenth Amendment, a position that was affirmed by Judge Sarah Wallace in her lengthy opinion that also held that Trump was, when all was said and done, engaged in an insurrection. Thereafter both former judge Luttig and Professor Laurence Tribe—not your standard-issue conservatives—appeared together on MSNBC to explain that Wallace’s ruling was “simply incorrect” without once explaining why.

Michael Luttig, George Conway, and Barbara Comstock did the Federalist Society a favor when they withdrew from participation in its events. Clearly they do not want to join in reasoned deliberation on matters of pressing importance. The level of polarization in American society is unprecedented. Their writing only raises the heat; it sheds no light on the challenges.

===

520

https://theweek.com/articles/911883/selfinflicted-derangement-conservative-intellectuals

...One is that the right has finally surrendered fully to the hubris and postmodern relativism expressed back in 2004 by a senior Bush administration adviser (widely assumed to be Karl Rove), who dismissed the “reality-based community” of journalists and experts in favor of allowing and encouraging those in power to create whole new realities by manipulating information. This temptation has been radicalized by Trump's brazen mendaciousness and its electoral success. Trump has shown that Republicans can be rabidly right wing, refuse to compromise with liberals on anything, and still win. This has made the dismissal of facts too great of a temptation to forswear, especially when the flood of bad news following from the pandemic threatens to drown the president just as he's heading into a re-election campaign. Which is to say that conservative intellectuals haven't just been Trumpfied on policy. They've also been Trumpified on epistemology and ethics.

Another possibility is that we're seeing the consequence of conservative intellectuals deciding to allow the culture war to swallow everything else in our public life. Conservatives have long believed that economics and politics are ultimately downstream from culture. But only now have they started to view every political or economic conflict as an expression of an underlying cultural clash that they believe they can win. Instead of getting their hands dirty with data, statistics, modeling, or wrestling with the difficult trade-offs involved in responding to dual epidemiological and economic crises, they prefer to tell ideologically satisfying stories that shoehorn the behavior of people, classes, politicians, and dreaded “elites” into pre-existing assumptions about the culture war.

Finally, there's the antinomian (and very American) distrust of science and expertise, which has now combined with long-standing conservative respect for the metarational prudence or wisdom of statesmen, to produce an inverted form of deference to ill-informed hunches, instincts, and intuitions, provided they're felt by ideological friends and political allies.So libertarian legal author Richard Epstein gets taken seriously across the right and in the White House when he defies the consensus of public-health experts on the basis of no concrete evidence at all to claim that the coronavirus will kill just 500 Americans.(He later raised his prediction to 5,000. The virus has thus far killed more than 63,000 with no immediate end in sight.) So R.R. Reno, the editor of First Thingsmagazine, relies on his gut (and a willfully obtuse reading of the data) to denounce efforts to halt the spread of the virus, all but claiming the American economy and public life have been intentionally wrecked by a malicious hoax promulgated by demonic liberals.

And then there are the many other conservatives who have quite seriously argued that the lockdowns that were imposed to lower fatalities from the virus were unnecessary … because the fatalities from the virus under the lockdown were lower than they were predicted to be without the lockdowns. (No, I'm not kidding.)

...

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3 25 Richard Epstein - Wikipedia

6 26

Politics

Epstein has said that when voting, he chooses "anyone but the Big Two" who are "just two members of the same statist party fighting over whose friends will get favors".^[38] He has voted Libertarian.^[39] Epstein says he is "certainly a Calvin Coolidge fan; he made some mistakes, but he was a small-government guy".^[39] Epstein served on The Constitution Project's Guantanamo Task Force.^[40][41][42]

In early 2015, Epstein commented on his relationship to the modern American political landscape, stating: "I'm in this very strange position: I'm not a conservative when it comes to religious values and so forth, but I do believe, in effect, in a strong foreign policy and a relatively small domestic government, but that's not the same thing as saying I believe in no government at all."^[43] He has also been characterized as a libertarian conservative.^[44][45] During a debate with Chris Preble in December 2016, Epstein identified himself as being a "libertarian hawk".^[46]

In 2023, Epstein co-authored an op-ed in the Wall Street Journal defending the 2023 Israeli judicial reform.^[47] Epstein has defended Israel's policies vis-à-vis Palestinians, calling allegations of apartheid a canard.^[48]

In January 2025, Epstein argued against birthright citizenship in the United States, a right enumerated in the Fourteenth Amendment to the United States Constitution.^[49][50]

Personal life

Epstein's wife, Eileen W. Epstein, is a fundraiser and educator who serves on the board of trustees for the philanthropic organization American Jewish World Service. They have three children: two sons, Benjamin M. and Elliot, and a daughter, Melissa. Epstein is a first cousin of the comedian and actor Paul Reiser.^[51]

Epstein has described himself as "a rather weak, non-practicing Jew."^[52]

Richard Epstein - Wikipedia

:{Richard Allen Epstein (born April 17, 1943) is an American legal scholar known for his writings on torts, contracts, property rights, law and economics, classical liberalism, and libertarianism.

He is the Laurence A. Tisch Professor of Law at New York University and the director of the Classical Liberal Institute. He also serves as a Senior Research Fellow at the Civitas Institute,^[1] as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and as a senior lecturer and the James Parker Hall Distinguished Service Professor of Law Emeritus at the University of Chicago.^[2]}:

:{According to James W. Ely Jr., Epstein's writings have had a "pervasive influence on American legal thought."^[3] In 2000, a study published in The Journal of Legal Studies identified Epstein as the 12th-most cited legal scholar of the 20th century; in 2008, he was chosen in a poll by Legal Affairs as one of the most influential modern legal thinkers.

A study of legal publications between 2009 and 2013 found Epstein to be the third-most frequently cited American legal scholar during that period, behind only Cass Sunstein and Erwin Chemerinsky. In a 2021 examination by Fred R. Shapiro, Epstein was the fifth most-cited legal scholar of all time.^[4]}:

Early life and education

Epstein was born on April 17, 1943, in Brooklyn, New York. His grandparents were Ashkenazi Jews who immigrated to the United States from Russia and Austria in the early 20th century. Epstein's father, Bernard Epstein (1908–1978), was a radiologist, and his mother, Catherine Epstein (née Reiser; 1908–2004), managed his father's medical office.^[5] He has two sisters. He attended elementary school at P.S. 161, a school that is now one of the Success Academy Charter Schools.^[6] Epstein and his family lived in Brooklyn until 1954, when his father began working at the Long Island Jewish Medical Center and their family moved to Great Neck, Long Island.^[6]

Epstein attended Columbia University as an undergraduate in the early 1960s. He had wide-ranging academic interests and did not wish to select a single major, obtaining special permission from the university to pursue a self-selected program of study across sociology, philosophy, and mathematics. He graduated with a B.A., summa cum laude, in 1964.^[7]

Epstein's undergraduate performance earned him a Kellett Fellowship, an award at Columbia that pays for two of each year's top graduates to spend two years in England studying at either Cambridge University or Oxford University; Epstein chose Oxford, where he studied jurisprudence at Oriel College. He received a B.A. with first-class honours in 1966, and then returned to the United States to attend Yale Law School. Because he had an English law degree, Epstein entered Yale as a transfer student with second-year standing.^[8] He graduated in 1968 with a LL.B., cum laude.

Academic career

After graduating from law school, Epstein became an assistant professor at the Gould School of Law of the University of Southern California (USC). He taught at USC for four years before moving to the University of Chicago Law School in 1972. Epstein taught at Chicago for 38 years, eventually holding the title of James Parker Hall Distinguished Service Professor of Law. Epstein formally retired from Chicago in 2010, but quickly came out of retirement to join the faculty of the New York University School of Law as its inaugural Laurence A. Tisch Professor of Law. He remains a professor emeritus and senior lecturer at Chicago, occasionally teaching courses there. In 2013, NYU Law established a new academic research center, the Classical Liberal Institute, and named Epstein its inaugural director.^[9]

:{Since 2001, Epstein has served as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, a prominent American public policy think tank at Stanford University. He has served in many academic and public organizations and has received a number of awards. In 1983, he was made a senior fellow at the Center for Clinical Medical Ethics at the University of Chicago Medical School, and, in 1985, he was inducted into the American Academy of Arts and Sciences.^[10]

He was editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001. In 2003, Epstein received an honorary LL.D. degree from the University of Ghent, and in 2018 he received an honorary doctorate in law from the University of Siegen.^[11] In 2005, the College of William & Mary awarded him the Brigham–Kanner Property Rights Prize for his contributions to the field of property rights.^[12] In 2011, he was awarded a Bradley Prize by the Bradley Foundation.^[13]}:

Writings

:{Epstein became famous in the American legal community in 1985 with Harvard University Press's publication of his book Takings: Private Property and the Power of Eminent Domain. In the book, Epstein argued that the "Takings Clause" of the Fifth Amendment to the U.S. Constitution—which reads, "nor shall private property be taken for public use, without just compensation", and is traditionally viewed as a limit on the governmental power of eminent domain—gives constitutional protection to citizens' economic rights,^[3] and so requires the government to be regarded the same as any other private entity in a property dispute.

The argument was controversial and sparked a great deal of debate on the interpretation of the takings clause after the book's publication. During Clarence Thomas's Supreme Court Justice confirmation hearings in 1991, then-Senator Joe Biden, "in a dramatic movement", held the book up and "repeatedly interrogated" Thomas about his position on the book's thesis.^[3] The book served as a focal point in the argument about the government's ability to control private property.^[14] It has also influenced how some courts view property rights^[15] and been cited by the U.S. Supreme Court four times, including in the 1992 case Lucas v. South Carolina Coastal Council.^[14]}:

At the height of the HIV pandemic in 1988, Epstein argued that companies ought to be able to discriminate against "AIDS carriers" and that anti-discrimination laws were unfair to employers. In place of such laws, Epstein argued that "AIDS carriers" ought to have their health insurance premiums subsidized via taxation so as to "discipline the behavior of government and interests groups, here by requiring citizens to make choices about how much they individually are prepared to pay to subsidize AIDS carriers." Furthermore, he argued that "[t]here is no reason to suppose that any public benefit obtained from having employers and their insurers care for AIDS victims will be at some level that matches the additional costs that are imposed." Instead, Epstein proposed that employers have the right to refuse to hire suspected "AIDS carriers".^[16]

Epstein is an advocate of minimal legal regulation. In his 1995 book Simple Rules for a Complex World, he consolidates much of his previous work and argues that simple rules work best because complexities create excessive costs. Complexity comes from attempting to do justice in individual cases. Complex rules are justifiable, however, if they can be opted out of. Drawing on Gary Becker, he argues that the Civil Rights Act and other anti-discrimination legislation ought to be repealed. Consistent with the principles of classical liberalism, he believes that the federal regulation on same-sex marriage, the Defense of Marriage Act, should be repealed,^[17] stating:

"Under our law, only the state may issue marriage licenses. That power carries with it a duty to serve all-comers on equal terms, which means that the state should not be able to pick and choose those on whom it bestows its favors. DOMA offends this principle in two ways. First, it excludes polygamous couples from receiving these marital benefits. Second, it excludes gay couples. Both groups contribute to the funds that support these various government programs. Both should share in its benefits."

Epstein has criticized the Supreme Court ruling in Obergefell v. Hodges.^[18][19] In 2007, he defended the intellectual property rights of pharmaceutical companies against the cheaper, generic production of AIDS drugs, writing that "disregarding property rights in the name of human rights reduces human welfare around the globe".^[20]

In 2014, Epstein argued against reparations for African Americans in a piece published on the Hoover Institution's website.^[21]

Contributing to the anthology Our American Story (2019), Epstein addressed the possibility of a shared American narrative. Taking a decidedly skeptical approach, Epstein concluded that no new national narrative can be achieved "unless we engage in what I call American minimalism—a conscious reduction of the issues that we think are truly best handled as a nation and not better address by smaller subnational groups: states, local governments, and, most importantly, all sorts of small private organizations that are free to choose as they please in setting their own membership and mission."^[22]

COVID-19 pandemic

:{In March and April 2020, Epstein wrote several essays published by the Hoover Institution giving a contrarian account of the COVID-19 pandemic and warning against extensive containment and mitigative United States responses to the COVID-19 pandemic, which he called an "overreaction".^[23] In a piece published on March 16, he argued that the word "pandemic" is not to be used lightly and that the virus should be allowed to run its course, predicting there would be 500 U.S. deaths. In early June, the U.S. death total surpassed 100,000.^[24]

On March 24, when U.S. deaths had already exceeded 500, Epstein added a "Correction & Addendum", in which he changed his forecast to 5,000 deaths^[25][26][27] without changing the underlying model that had led him to his first estimate.^[28] On April 6, when the death toll had already far surpassed his earlier predictions, he again revised that figure, with the "Correction & Addendum" section declaring under the inaccurate date stamp "March 24, 2020" that the "original erroneous estimate of 5,000 dead in the US [was] a number 10 times smaller than [he had] intended to state", implying that both "500" and "5,000" had been misprints for "50,000".^[29]

After several news reports about Epstein's ever-increasing estimates, on April 21 an editor's note appeared on the website that explained the latest changes as an "editing error" and clarified that Epstein's original prediction had been 500 deaths.^[30] In December 2020, when the death toll from COVID-19 in the U.S. was over 333,000, Politico named Epstein's predictions among "the most audacious, confident and spectacularly incorrect prognostications about the year".^[31]}:

:{Epstein compared COVID-19 to the 2009 H1N1 pandemic and suggested that public health measures "are done better at the level of plants, hotels, restaurants, and schools than remotely by political leaders." He argued that "the response of the state governors to the coronavirus outbreak has become far more dangerous than the disease itself", writing that the number of deaths had been exaggerated.^[32]

His essays, containing a number of factual errors and misconceptions about the SARS-CoV-2 virus, circulated in conservative circles and in the Trump administration upon their publication.^[33][34] In an article published on June 6, Epstein praised Republican-governed states like Florida for their crisis management, linking the then greater deaths in Democratic-governed states to their "interventionist policies".^[35]}:

Influence

Epstein speaks at a conference in George Mason University (2009).

In 2006, the American scholar James W. Ely Jr. wrote: "It is a widely accepted premise that Professor Richard A. Epstein has exercised a pervasive influence on American legal thought."^[3] In 2000, a study published in The Journal of Legal Studies identified Epstein as the 12th-most cited legal scholar of the entire 20th century.^[36] In 2008, he was chosen in a poll taken by Legal Affairs as one of the most influential legal thinkers of modern times.^[37] A study of legal publications between 2009 and 2013 found Epstein to be the 3rd most frequently cited American legal scholar, behind only Cass Sunstein and Erwin Chemerinsky.^[38]

Epstein's former students include a number of prominent judges, lawyers, and law professors, including Neomi Rao, Michael McConnell, Noel Francisco, Martha Pacold, and David McIntosh.^[8]

Politics

Epstein has said that when voting, he chooses "anyone but the Big Two" who are "just two members of the same statist party fighting over whose friends will get favors".^[39] He has voted Libertarian.^[40] Epstein says he is "certainly a Calvin Coolidge fan; he made some mistakes, but he was a small-government guy".^[40] Epstein served on The Constitution Project's Guantanamo Task Force.^[41][42][43] Epstein has said that Learned Hand should have been on the Supreme Court and that his favorite English judge was Baron Bramwell.^[8]

In early 2015, Epstein commented on his relationship to the modern American political landscape, stating: "I'm in this very strange position: I'm not a conservative when it comes to religious values and so forth, but I do believe, in effect, in a strong foreign policy and a relatively small domestic government, but that's not the same thing as saying I believe in no government at all."^[44] He has also been characterized as a libertarian conservative.^[45][46] During a debate with Chris Preble in December 2016, Epstein identified himself as being a "libertarian hawk".^[47]

In 2023, Epstein co-authored an op-ed in the Wall Street Journal defending the 2023 Israeli judicial reform.^[48] Epstein has defended Israel's policies vis-à-vis Palestinians, calling allegations of apartheid a canard.^[49]

In January 2025, Epstein argued against Birthright citizenship in the United States, a right enshrined in the Fourteenth Amendment to the United States Constitution.^[50]

Personal life

Epstein, who had a bar mitzvah,^[8] has described himself as "a rather weak, non-practicing Jew."^[52]

Selected works

Books

Epstein, Richard A. (1985). Takings: Private Property and the Power of Eminent Domain. Cambridge: Harvard University Press. ISBN 0674867297.
— (1992). Forbidden Grounds: The Case Against Employment Discrimination Laws. Cambridge: Harvard University Press. ISBN 978-0674308084.
—; Stone, Geoffrey R.; Sunstein, Cass R. (1992). The Bill of Rights in the Modern State. Chicago: University of Chicago Press. ISBN 978-0226775326.
— (1995). Simple Rules for a Complex World. Cambridge: Harvard University Press. ISBN 978-0674808218.
—; Sunstein, Cass R. (2001). The Vote: Bush, Gore & the Supreme Court. Chicago: University of Chicago Press. ISBN 978-0226213071.
— (2011). Design for Liberty: Private Property, Public Administration, and the Rule of Law. Cambridge: Harvard University Press. ISBN 978-0674061842.
— (2014). The Classical Liberal Constitution: The Uncertain Quest for Limited Government. Cambridge: Harvard University Press. ISBN 978-0674724891.
— (2020). The Dubious Morality of Modern Administrative Law. Lanham: Rowman & Littlefield. ISBN 978-1-5381-4149-6.

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oFF bs

Peter and Kirsten Bedford Senior Fellow

Research Team:

Working Group on Intellectual Property, Innovation, and ProsperitySteering Committee

Property Rights, Freedom, and Prosperity Task ForceMember

Immigration ReformContributor

Related Sites:

Connect with Epstein on Twitter

Awards and Honors:| American Academy of Arts and Sciences | Bradley Prize (2011) |

Biography:

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.

In 2011, Epstein was a recipient of the Bradley Prize for outstanding achievement. In 2005, the College of William & Mary School of Law awarded him the Brigham-Kanner Property Rights Prize.

Epstein researches and writes in a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporation criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation.

He edited the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).

Epstein’s most recent publication is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). Other books include Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011); The Case against the Employee Free Choice Act (Hoover Institution Press, 2009); Supreme Neglect: How to Revive the Constitutional Protection for Private Property (2008); How the Progressives Rewrote the Constitution (2006); Overdose (2006); andFree Markets under Siege: Cartels, Politics, and Social Welfare (Hoover Institution Press, 2005).

He received a BA degree in philosophy summa cum laude from Columbia in 1964; a BA degree in law with first-class honors from Oxford University in 1966; and an LLB degree cum laude, from the Yale Law School in 1968. Upon graduation he joined the faculty at the University of Southern California, where he taught until 1972. In 1972, he visited the University of Chicago and became a regular member of the faculty the following year.

He has been a senior fellow at the MacLean Center for Clinical Medical Ethics since 1984 and was elected a fellow of the American Academy of Arts and Sciences in 1985. He has been a Hoover fellow since 2000.

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http://www.hoover.org/research/climate-wars-get-ugly

The Climate Wars Get Ugly

by Richard A. Epstein

Monday, April 18, 2016

During this polarizing presidential election campaign, people seem to be more divided than ever on policy matters—a point that is especially evident in the contentious disputes over climate change, where opposing sides are now pitted against each other in litigation.

On the one side of the climate debate are the “alarmists.” To this group, the only question is what should be done to contain the problem of climate change. To be sure, there is ample evidence of climate change, and even some evidence showing that some fraction of it is caused by humans. But from this modest claim, one cannot infer that all or even a majority of this change is attributable to the use of fossil fuels, or that any and all temperature increases carry with them a threat to the natural world. But these alarmists, skeptics claim, exaggerate the supposed threat of global warming to bring an end to the fossil fuel industry and force excessive and premature reliance on expensive and unreliable solar and wind energy.

On the other side are the “deniers,” who dare to ignore the well-established truth that climate change is occurring. To them, the claim that 97 percent of climate experts believe in man-made global warming is wholly misleading, if not downright fraudulent. After all, scientists who agree that humans contribute to global warming could have huge disagreements on the source, magnitude, and consequences of the effect. Understanding the climate change literature requires some heavy legwork to take into account the interactive effects of human actions and natural events.

The climate skeptics have a point. An incident from a decade ago shows how tricky the analysis of the science can get. Professor Naomi Oreskes,then at the University of California, analyzed some thousand papers on global warming and concluded that over 75 percent of them backed the view that global warming was largely attributable to human intervention. But when Dr. Benny Peiserof Liverpool University looked at the same data, he concluded that only one-third could be read to support the consensus view, and that, of those, only one percent did so explicitly. Oreskes’s paper has been cited from President Obama on down while Peiser’s paper has been rejected not because it was wrong, but because its conclusions were, so it was said, already widely known. More recent studies in line with Peiser’s have been met with a similar skeptical response.

In principle, it should be possible to separate the scientific issues from the political ones. But in today’s overheated political environment, that is difficult to do. The latest example of the politicization of climate change comes via twenty state Attorney Generals, led by New York State Attorney General Eric Schneiderman, who are bringing civil and criminal legal actions against ExxonMobil. A similar course of action has been proposed by Rhode Island Senator Sheldon Whitehead, who advocates investigations of fossil fuel companies for possible violations of the civil and criminal law.

To folks like Schneiderman, progressive forces of good must vanquish the reactionary forces of evil, like ExxonMobil. In articulating his view at a press conference recently in New York, Schneiderman starts from a position of legal strength because the 1921 New York Martin Act, passed to deal with financial manipulation, gives the state Attorney General exceptional powers to sue to stop fraudulent behavior in financial markets. The distinctive feature of the law is that it dispenses with the need of the New York Attorney General to prove three of the five elements of common law fraud—scienter (knowledge), reliance and damages—so that all that is left to prove is a false statement of some material fact.

Yet even the Martin Act has its limitations. Some material false statements are easy to spot: consider the CEO who publicly states that his corporation has gold in its safe when the safe is empty. But it is a very different matter to claim that arguments about the complex causes of the current climate trends, and projections of future climate, are “facts” that can easily be branded as false. The usual way in which to hash these matters out is to have an intelligent debate on the pros and cons of each side. And a debate over these matters should receive the highest level of constitutional protection, given that it would be about finding the truth, and using that information to guide political action. The Martin Act aside, a theory of freedom of speech that denies an opportunity for scientific and political debate restricts the core of “high value” speech that is entitled to constitutional protection. Given its endless set of interlocking presumptions, the Martin Act may well be unconstitutional on its face.

Yet Schneiderman does not see the world that way. In his view, “The First Amendment, ladies and gentlemen, does not give you the right to commit fraud.” The Martin Act conveniently gives the New York Attorney General enormous leverage by allowing him to speak out of both sides of his mouth. In court, he can take advantage of the expansive liability under the Act. But in public discussions, he can brand the companies he opposes as fraudulent.

The most notable attendee of Schneiderman’s press conference was Al Gore, who insisted that Hurricane Sandy was in part caused by climate change—and, specifically, by abnormally high temperatures over the Atlantic Ocean. But there have been major hurricanes for decades, if not centuries, so it is unclear if the natural variability in weather could explain this particular event. In any case, the attempt to infer from long-term climate trends a causal role for particular weather events is deeply problematic.

Gore also attracted attention by saying, “temperatures are breaking records almost every year now. 2015 was the hottest year measured since instruments had been used to measure temperature. 2014 was the second hottest. 14 of the 15 hottest have been in the last 15 years.” But note that there are no actual temperature figures in this statement, probably because temperature increases have plateaued, albeit at a high level, over the past 18 years, notwithstanding substantial increases in carbon dioxide emissions.

Indeed, one troublesome part of this debate is the weak correlation between temperature increases and the rise in carbon dioxide concentrations. Data presented by climate scientist John :{Christy shows that the standard models have not done well against actual data for the past 37 years. These climate models have predicted temperature increases three-fold that of those that have been observed, and the greatest errors in the models were where the increases in carbon dioxide concentrations were the largest. Models, as Christy warned, “are properly defined as scientific hypotheses or claims—model output cannot be considered as providing proof of the links between climate variations and greenhouse gases.” That is especially true for models whose predictions have been falsified over a forty-year period. It seems even clearer that these models should never be used as the basis of criminal prosecutions or civil investigations.}:

Which brings us back to ExxonMobil. Shortly after the 20 Attorney Generals met in New York to renew their pledges against climate change,Claude Earl Walker, Attorney General of the United States Virgin Islands, hired the crack law firm of Cohen Milstein to mount a huge civil investigation of ExxonMobil’s activities in the area of climate change. The suit was especially piquant since ExxonMobil does no business in the Virgin Islands. The gist of the charges was that ExxonMobil systematically misled the public over the past forty years in order to improve its ability to extract oil and gas around the globe.

A moment’s reflection reveals how bizarre this fraud suit is. First, it is unlikely that the company adopted any kind of consistent policy over a forty-year period. Second, it is difficult to believe that policymakers have been misled by the company’s alleged misrepresentations. For years now, the opponents of fossil fuels have denounced ExxonMobil and other companies for their perfidy—and these firms have been under close scrutiny as a result. It is odd to think that any corporate scheme could have duped political leaders who were inundated day after day with information intended to expose the falsehoods that ExxonMobil is said to have perpetuated.

In this connection, moreover, I am somewhat unhappy that the ExxonMobil defense rests in part on the view that it has cooperated with government officials in dealing with global warming. That may well be true, but it is also beside the point for the First Amendmentanalysis. The company is entitled to express its own views, even if they are in opposition to the government’s. Nonetheless, to its lasting credit, ExxonMobil has chosen to counterattack. Normally, the demands for discovery, no matter how onerous, are met with a variety of defensive motions. But in this instance, ExxonMobil took to the offense by bringing its own action for declaratory relief in Texas State District Court, in which it insisted that the entire effort by the Virgin Islands (and its lawyers) ran afoul of a variety of constitutional guarantees, including those involving freedom of speech, protection against unreasonable searches and seizures, and violations of procedural due process.

The common theme behind these defenses is that this sprawling issue is not amenable to litigation, but only to debate. It is simply impossible to have a fair debate on any question if one side to the dispute is able to haul its opponents into court with potential civil or criminal litigation. Ominously, for example, Walker is also going after think tanks. He served a subpoena to the Competitive Enterprise Institute, demanding that it turn over a large collection of documents relating to its climate change work between 1997-2007, which is done clearly with the desire to sniff out potential criminal activity from an organization that has published a number of powerful critiques of government action. If this is not a violation of free speech, then I don’t know what is. Climate change may be real, but the First Amendment should not be pushed aside by the high political theater of ideologues like Eric Schneiderman and Charles Earl Walker.

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http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html?pagewanted=print&position

see legal.txt

7/8/2012

The New York Times

April 17, 2005

The Unregulated Offensive

http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html?pagewanted=print&position

By JEFFREY ROSEN

I. Justice Thomas's Other Controversy

If you think back to Clarence Thomas's Supreme Court confirmation hearings in 1991, what most likely comes to mind are the explosive allegations of sexual harassment made by the law professor Anita Hill. Years from now, however, when observers of the court look back on the hearings, they may well focus on a clash that preceded Hill's accusations -- an acrimonious exchange that few remember today.

Early in the hearings, Joseph Biden, the Delaware Democrat who was chairman of the Senate Judiciary Committee, voiced a concern about Thomas's judicial philosophy. In particular, he singled out a speech that Thomas gave in 1987 in which he expressed an affinity for the ideas of legal scholars like Richard A. Epstein. A law professor at the University of Chicago, Epstein was notorious in legal circles for his thesis that many of the laws underpinning the modern welfare state are unconstitutional. Thomas tried to assure Biden that he was interested in ideas like Epstein's only as a matter of ''political theory'' and that he would not actually implement them as a Supreme Court justice. Biden, apparently unpersuaded, picked up a copy of Epstein's 1985 book, ''Takings: Private Property and the Power of Eminent Domain,'' and theatrically waved it in the air. Anyone who embraced the book's extreme thesis, he seemed to be suggesting, was unfit to sit on the court.

At the time, it was impossible to know whether Biden was right to worry. He was surely right, though, that Epstein was promoting a legal philosophy far more radical in its implications than anything entertained by Antonin Scalia, then, as now, the court's most irascible conservative. As Epstein sees it, all individuals have certain inherent rights and liberties, including ''economic'' liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation -- when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes. In Epstein's view, these libertarian freedoms are not only defensible as a matter of political philosophy but are also protected by the United States Constitution. Any government that violates them is, by his lights, repressive. One such government, in Epstein's worldview, is our government. When Epstein gazes across America, he sees a nation in the chains of minimum-wage laws and zoning regulations. His theory calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt's New Deal.

After Thomas joined the Supreme Court, Biden's warnings seemed prescient. In 1995, echoes of Epstein's ideas could be clearly heard in one ofThomas's opinions. By a 5-4 majority in United States v. Lopez, the court struck down a federal law banning guns in school zones, arguing that the law fell outside Congress's constitutional power to regulate interstate commerce. Lopez was a judicial landmark: it was the first time since the New Deal that the court had limited the power of the federal government on those grounds. Thomas, who sided with the majority, chose to write a separate opinion in which he suggested that even his conservative colleagues had not gone far enough. The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government's power. He assailed his liberal colleagues for characterizing ''the first 150 years of this Court's case law as a 'wrong turn.''' He continued, ''If anything, the 'wrong turn' was the Court's dramatic departure in the 1930's from a century and a half of precedent.''

Thomas did not cite Epstein directly in his opinion. But to anyone familiar with Epstein's writings, the similarities were striking. Indeed, Thomas's argument closely resembled one Epstein had made eight years earlier in ''The Proper Scope of the Commerce Power'' in the Virginia Law Review -- so closely, in fact, that Sanford Levinson, a liberal law professor at the University of Texas, accused Thomas of outright intellectual theft. (''The ordinary standards governing attribution of sources -- the violation of which constitutes plagiarism-- seem not to apply in Justice Thomas's chambers,'' Levinson wrote in the Texas Law Review.) Biden's fear that Epstein's ideas might be written into law had apparently been realized. And the fear would continue to be realized in other courts throughout the 90's as asmall but energetic set of lower-court judges, sympathetic to libertarian arguments, tried to strike down aspects of the Clean Water Act, the Endangered Species Act and other laws, challenging powers of the federal government that had come to be widely accepted during the second half of the 20th century.

Chief Justice William Rehnquist is expected to announce his resignation sometime this year, perhaps before the end of the court's current term in June. Rehnquist's retirement would create at least one confirmation hearing for a new justice, and two hearings if President George W. Bush chooses to nominate one of the current justices to be chief justice. At the same time, there is a political battle looming in the Senate over seven federal appellate-court candidates whose nominations were blocked by Senate Democrats during Bush's first term but who were renominated by the president after his re-election. Many liberals and centrists worry, and many conservatives hope, that the doctrine favored by these judicial candidates is originalism, the stated constitutional theory of Scalia. Originalistsdon't like interpreting the Constitution in light of present-day social developments and are generally skeptical of constitutional rights -- like the right to have an abortion -- that don't appear explicitly in the text of the Constitution. At least in theory, those in the originalist camp champion judicial restraint and states' rights.

But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court.

Critics of the movement note, with some anxiety, that it has no shortage of targets. Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called ''Fundamentally Wrong.'' As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that ''many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.'' In what Sunstein described as the ''extreme nightmare scenario,'' the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

Any movement with such ambitious goals must be patient and take the long view about its prospects for success. Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. ''I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice,'' he says. ''We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there.''

II. Glory Days

All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties. Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.

The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. The court struck down the law on the grounds that it violated the bakers' freedom of contract, which was arguably, but not explicitly, included in the 14th Amendment's protections of ''liberty'' and ''property.'' In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,'' referring to the celebrated Social Darwinist and advocate of laissez-faire economics.

Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act. In February 1937, Roosevelt threatened to pack the court with justices who would presumably be more deferential to national regulation of the economy. Within a month, the court backed down, upholding a state law imposing a minimum wage for women and minors. (The majority opinion noted that ''the unparalleled demands for relief which arose during the recent period of depression'' had dislodged old laissez-faire nostrums about the equal bargaining power of workers and employers.) The following year, in the Carolene Products case, the court announced that it would uphold all economic regulations unless no reasonable person could believe them to be rational. Today, the conventional wisdom among liberal and conservative legal thinkers alike is that Lochner was decided incorrectly and that the court's embrace of judicial restraint on economic matters in 1937 was a triumph for democracy.

Members of the Constitution in Exile movement do not share this view. Not long ago, I visited Greve in his office on 17th Street in Washington. Greve, a witty and sardonic libertarian, is the American Enterprise Institute's John G. Searle Scholar (his benefactor was a pharmaceutical magnate), and over the course of a long conversation, he explained that 1937 was, in his opinion, an unmitigated disaster, resulting in the judicial abandonment of constitutional limits on government power that are inherent in the nature of a free society and the creation of a regulatory behemoth. As the administrative state ballooned during the 60's and 70's, judicial deference became even more pervasive: new independent regulatory agencies, from the Environmental Protection Agency to the Federal Communications Commission, began issuing a slew of regulations. To Greve's dismay, much of the regulatory state is politically quite popular; even a Republican Congress, he acknowledged, seems unlikely to roll back most post-New Deal programs and regulations. ''Judicial activism will have to be deployed,'' he said. ''It's plain that the idea of judicial deference was a dead end for conservatives from the get-go.''

Now 48, Greve was born in Germany and came to embrace a libertarian outlook during his undergraduate years at the University of Hamburg, from which he graduated in 1981. That year, he visited the United States on a Fulbright and ended up at Cornell for a doctorate in government. (''I consider myself a refugee from the welfare state,'' he said with a chuckle.) His Ph.D. contrasted liberal environmental litigation in Germany and the United States. Greve was frustrated but also impressed by the way that well-financed liberal groups like Ralph Nader's Public Citizen worked in the courts to expand the reach of environmental laws, and he decided that the conservative movement needed to create organizations that would do exactly the opposite.

One of Greve's goals at the American Enterprise Institute is to convince more mainstream conservatives that traditional federalism -- which is skeptical of federal, but not state, power -- is only half right. In his view, states can threaten economic liberty just as significantly as the federal government. He is still exercised by the lawsuit brought in the 90's by 46 states against the tobacco companies, which resulted in a $246 billion settlement. ''Taking the tobacco settlement down would have a huge public impact -- that would push you in the right direction,'' he said, taking a long drag on a cigarette.

Although Greve's liberal critics have argued that resurrecting strict constitutional limits on federal and state powers would essentially mean a return to the unregulated climate of the Gilded Age, Greve emphasized that he doesn't have the Gilded Age in mind. The ''modern, vibrant, mobile'' and global economy of the 21st century, he argued, is competitive enough to regulate itself in most areas. Though he envisions a role for government in protecting against egregious forms of coercion, force and fraud, all other abuses would be regulated by private agreements among citizens. ''I don't think much would be lost if we overturned federal wetlands regulations or if we repealed the Endangered Species Act, just by way of illustration,'' he said.

Greve expressed cautious optimism that his views will get a sympathetic hearing from some of the federal appellate judges renominated this year by the president. He said he is especially happy that Bush has tapped William Pryor, the former attorney general of Alabama. Greve noted that in one of the big Supreme Court cases involving the limits of federal power, which ultimately invalidated parts of the Violence Against Women Act, Pryor wrote a brief that Greve and other libertarians greatly admired. ''Bill Pryor is the key to this puzzle; there's nobody like him,'' Greve said. ''I think he's sensational. He gets almost all of it.''

III. The Network

The idea of creating a network of activist conservative litigation groups was proposed in the early 70's by Lewis Powell, a corporate lawyer and future Supreme Court justice. In the years following the defeat of the Goldwater Republicans in 1964, conservatives were casting about for a new political strategy. At the same time, business interests were alarmed by the growth of the regulatory state and, in particular, the marked increase in environmental litigation. In 1971, Powell wrote a landmark memo for the United States Chamber of Commerce urging a counterattack. In addition to encouraging conservatives to develop a systematic and long-term effort to spread their ideas in the media, Powell recommended that conservatives should get over their aversion to judicial activism. ''Especially with an activist-minded Supreme Court,'' he wrote, ''the Judiciary may be the most important instrument for social, economic and political change.''

At the time, Powell's idea was being echoed in California by a group of conservatives close to Ronald Reagan, who had recently been re-elected governor. Reagan, who pledged to reform welfare in his 1970 campaign, set up a task force to do so, headed by his chief of staff, Edwin Meese III. The resulting reforms, which restricted welfare eligibility and cut the state's welfare rolls by more than 250,000 in three years, were attacked in the courts by liberal groups. Reagan's supporters were infuriated that there were no conservative groups that could respond in kind. ''The liberals were using the courts,'' Meese recalled recently during a conversation in his office at the Heritage Foundation in Washington. ''We wanted to make it a fair fight.''

According to a history of conservative legal activism published by Heritage, ''Bringing Justice to the People,'' the first person to take up Powell's challenge, in the early 1970's, was John Simon Fluor, a wealthy Reagan supporter. Fluor was upset that environmental groups had managed to delay the construction of the Alaska pipeline and the initiation of offshore drilling in the Gulf of Mexico. After conversations with fellow Reagan supporters, including Meese, Fluor provided the seed money for the Pacific Legal Foundation, the first conservative property-rights litigation shop in the nation. It was staffed with members of the Reagan welfare-reform team and incorporated in 1973.

Other conservative business interests quickly replicated Fluor's model. In 1975, money from the major oil companies helped to create the National Legal Center for the Public Interest, an umbrella organization for several regional litigation groups. Each group's focus was determined by its location. The most influential spinoff group to emerge was the Mountain States Legal Foundation, financed by the beer magnate Joseph Coors, which was set up in 1977 to challenge federal land-use and natural-resources regulations, long a source of political resistance in the West. (The foundation's distinguished alumni of the period include Gale Norton, now secretary of the interior, and Jon Kyl, now a senator from Arizona.)

Though these conservative groups clearly served the interests of local businesses, they also attracted a number of libertarians, many of whom were not always consistent supporters of big business. One of the more thoughtful of these is Chip Mellor, who joined the Mountain States Legal Foundation in the late 70's and is now the head of the Institute for Justice, a libertarian public-interest law firm in Washington. When I visited him recently at his office near the White House (with an impressive corner view of the Old Executive Office Building), he spoke engagingly of his youthful idealism. ''I came out of the protests of the 1960's,'' he recalled, ''where I was dissatisfied with the right and the left.'' He immersed himself in the writings of Milton Friedman, the Nobel Prize-winning free-market economist, as well as those of the libertarian novelist Ayn Rand. ''It was quite illuminating for me to read Friedman and Rand and to realize that you could not divorce economic liberty and private property rights from the truly free individual,'' Mellor said. ''I came to see that societies where those rights were taken away inevitably led to people impoverished in monetary wealth and basic liberties.''

When he was a law student at the University of Denver, Mellor saw a recruiting flier for the Mountain States Legal Foundation and was intrigued by its mention of property rights. Sporting long hair and a handlebar mustache, he showed up without an appointment, but hit it off nevertheless with the foundation's president, James Watt. (Watt would later achieve renown for his knockdown battles with environmentalists as Reagan's secretary of the interior.) By 1982, Mellor had risen to become the acting president of the foundation, and he soon hired a young law-school graduate and fellow libertarian named Clint Bolick. The two became fast friends and pledged to sustain their passion for libertarian principles above partisan politics. (A fierce defender of Clarence Thomas during his nomination battle, Bolick left the Republican Party not long ago in protest over its anti-immigrant policies and the Iraq war.)

Bolick, whose sunny idealism is hard to resist, still gets indignant when he recalls how Mellor came to part ways with Mountain States. It began when the foundation filed a free-speech lawsuit opposing an exclusive cable-TV franchise granted by the city of Denver to a local businessman who happened to be a friend of Joseph Coors. When Coors resigned from the board to protest the direction that Mountain States seemed to moving in, it set in motion a process that led, a year later, to Mellor being fired. ''Chip and I discovered that there is a world of difference between an organization that is pro-business and an organization that is pro-free enterprise,'' Bolick told me recently. ''We learned that some of the influential backers of the movement were more pro-business than pro-free enterprise.'' After the firing, Mellor said, he and Bolick sat in Mellor's backyard with tears in their eyes. ''We pledged this is wrong, and someday we're going to do it right,'' he said.

They soon got their chance. After stints in Washington with the Reagan administration, in which Mellor was a deputy general counsel at the Department of Energy and Bolick was an assistant at the Equal Employment Opportunity Commission (then led by Clarence Thomas), the two men, in 1991, persuaded Charles Koch, an oil and gas magnate, to give them $350,000 a year in seed money from his private foundation to start the Institute for Justice. (To this day, the institute does not actively solicit corporate financing, and its $6.6 million annual budget is far lower than those of its liberal counterparts, like the A.C.L.U.) Before long, Mellor and Bolick had achieved victories in lower courts for clients without deep pockets. In a series of cases, they challenged state licensing laws that made it hard for small-business entrepreneurs to break into highly regulated professions. Their successful clients included limo drivers in Las Vegas, African-American hair braiders in San Diego and casket sellers in Tennessee. When Mellor gave me a tour of his office, he proudly pointed out an engraved tombstone of appreciation from the casket sellers, which sits in the institute's reception area.

IV. The (Other) Rights of Man

Defending the right of small businessmen to challenge local monopolies may have been necessary and noble, but for the movement it represented a small piece of the puzzle. If Mellor and Bolick and others like them were to transform the Supreme Court's approach to the entire post-New Deal regulatory state -- to ''resurrect the Constitution in Exile,'' as Bolick puts it -- they would have to develop a sophisticated jurisprudential framework.

Early on, the movement found its intellectual guru in Richard Epstein. In the words of Michael Greve, Epstein is ''the intellectual patron saint of everybody in this movement.'' Like Bolick, Epstein is too much of a libertarian purist to be a party loyalist. (''Our president is a most inconsistent classical liberal, to be charitable,'' he says. ''He's terrible on trade and a huge spender and not completely candid about the parlous situation Social Security is in.'') But his devotion to -- and influence on -- the Constitution in Exile is unsurpassed.

''Takings: Private Property and the Power of Eminent Domain,'' still in print 20 years after its publication, purports to specify the conditions under which government can rightfully impose regulations and taxes that reduce the value of private property. Drawing on the political philosophy of John Locke, Epstein argues that before the existence of government, individuals in what political theorists call the ''state of nature'' have an inherent right of autonomy, which entitles them to acquire property by dint of their labor and to dispose of it only as they see fit through voluntary transfer of goods. Epstein also maintains that any form of government coercion -- including taxation or other forced transfers of wealth -- can be reconciled with the principles of personal freedom only if it makes individuals at least as well off as they were before the tax or regulation was imposed. Epstein's key insight, as the Constitution in Exile adherents see it, is that economic regulations are just as coercive as other involuntary wealth transfers. He insists that if the government wants to reduce the value of an individual's property -- with zoning restrictions, for example -- it has to compensate him for the lost value.

Moving from political theory to constitutional law, Epstein argues that the framers of the United States Constitution recognized these limitations on governmental power in the Takings Clause of the Constitution, which says that ''private property'' cannot be taken for public use ''without just compensation.'' According to Epstein, the Takings Clause prevents the government from redistributing wealth in any form without appropriate compensation and that a proper understanding of the clause calls into question ''many of the heralded reforms and institutions of the 20th century: zoning, rent control, workers' compensation laws, transfer payments,'' as well as ''progressive taxation.'' Liberal governmental reforms could be sustained, Epstein argues, only if the government were to compensate individuals for the lost value of their property or to make everyone better off in exchange for their taxes. ''This simple theory of governance could be expanded to cover all taxes, all regulations, all shift in liability schemes,'' Epstein wrote in an intellectual autobiography. ''It is also the recipe for striking down the New Deal.''

''Takings'' made Epstein a star on the Republican circuit, and he quickly became a favorite intellectual of Edwin Meese, then Reagan's attorney general. (Perhaps inspired by Epstein's arguments, Meese once announced at a Justice Department conference that a ''revolution'' in economic liberty was a possibility.) In 1986, Meese's office contacted Epstein and asked him to make a scholarly inquiry into Congress's power to regulate interstate commerce. The following year, Epstein published the results of his research in ''The Proper Scope of the Commerce Power'' (the article that Clarence Thomas would apparently later draw on in his Lopez opinion). Epstein argued that before the New Deal, Congress had the power to regulate only the channels of interstate commerce (railroads, for example) but not manufacturing, which doesn't qualify as commerce, or the trade of goods that don't cross state lines. The court, he maintained, was wrong, in its landmark 1942 ruling in Wickard v. Filburn, to allow the federal government to regulate the wheat production of a farmer who grew it for his own consumption. (The government had argued that private consumption was reducing demand for wheat that traveled across state lines.) Though he dutifully noted that his conclusion ''seems radical,'' Epstein called on the court to reverse its error by returning to the more limited pre-New Deal understanding of Congress's power to regulate the economy.

From the outset, Epstein's ideas ran into resistance from traditional judicial conservatives. In October 1984, Epstein clashed publicly with Antonin Scalia, his former colleague at the University of Chicago, in a panel discussion convened at the libertarian Cato Institute. Scalia, speaking first before a standing-room-only crowd, defended the view that judges should restrain themselves from overturning legislation in the name of rights or liberties not clearly and expressly enumerated in the Constitution. ''Every era raises its own peculiar threat to constitutional democracy,'' he said. ''The reversal of a half-century of judicial restraint in the economic realm'' -- Epstein's stated project -- ''comes within that category.'' As a traditional federalist, Scalia had his own qualms about the unconstitutionality of unlimited federal power, but he was not in favor of striking down laws in the name of ambiguous and contestable economic rights. Scalia argued that conservatives who had criticized earlier courts, like the Warren court, for liberal judicial activism now faced a ''moment of truth.'' They had to show the courage to reject conservative judicial activism as well.

When Epstein heard what Scalia had to say, he threw away his prepared remarks and delivered a spontaneous attack. Freely admitting that he was questioning the conservative ''conventional wisdom,'' Epstein insisted that judges should be much more aggressive in protecting economic liberty. ''There are many blatantly inappropriate statutes that cry out for a quick and easy kill,'' Epstein said, citing minimum-wage laws and other ''legislative regulation of the economy.'' He excoriated the Supreme Court for refusing to strike these laws down. ''One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent,'' he concluded. ''Some movement in the direction of judicial activism is clearly indicated.''

V. Permanent Exile?

By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging.

In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of ''the Constitution in Exile.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty -- even if perhaps not in their own lifetimes.'' While not all the leaders of the movement immediately embraced Ginsburg's catch phrase (Edwin Meese says that the phrase Constitution in Exile suggests incorrectly that they have retired from the field of battle), among some legal conservatives it became a rallying cry.

The restoration did not occur. The Rehnquist court in recent years has proved more sympathetic to enforcing limits on Congress's power than any court since 1937: between 1995 and 2003, the court struck down 33 federal laws on constitutional grounds -- a higher annual rate than any other Supreme Court in history. But the so-called federalism revolution on the Rehnquist court did not deliver all of what the proponents of the Constitution in Exile had hoped. Every time a lower court appeared to be on the brink of successfully striking down a federal statute with substantial political support, like the Endangered Species Act, the Supreme Court wrote a hedging opinion reassuring the country that the justices intended to challenge Congressional power only at the margins.

''I think we failed,'' Michael Greve said flatly when I asked him about the past decade of Supreme Court litigation. ''There are encouraging signs that with the right strategic moves you can make some headway, until the court looks the principle in the eye and says, 'Oh, my God,' and pulls back.'' He rattled off a series of property-rights cases in which the Supreme Court had declared (in his mocking paraphrase), ''Oh, no, this would be too inconvenient, too constraining for government.''

During the current term, the Supreme Court has heard three cases involving questions of economic liberty that, according to Greve, represent the most significant tests in a decade of the power of the Constitution in Exile movement. Kelo v. New London, which was argued before the court in February, concerned Susette Kelo, a woman who sued the city of New London, Conn., after it used its power of eminent domain to seize 90 acres of property, including her house. The city planned to turn the parcel over to a private developer in order to increase the tax base and revitalize the city. Chip Mellor's organization, the Institute for Justice, represented Kelo, whom the institute's lawyers had sought out because she seemed like a sympathetic victim. Standing before the justices, Kelo's lawyer, Scott G. Bullock, asked the court to reject the claim that as long as the state could point to a plausible public purpose for the taking of private property (like increasing the tax base), it could appropriate people's homes. Justice Sandra Day O'Connor, however, seemed unimpressed by the suggestion that courts should second-guess the economic judgments of legislatures.

O'Connor and other justices seemed similarly skeptical during the second case, Lingle v. Chevron, U.S.A., which they heard later that same morning. Lingle involved a challenge to a rent-control regulation in Hawaii. Richard Epstein filed a brief for the Cato Institute that argued that the court should abandon its longstanding presumption that economic regulations are rational and ask instead whether the law, in fact, makes economic sense or is simply a ''naked wealth transfer.''

Randy Barnett, a libertarian scholar at the Boston University School of Law and the Cato Institute, was the plaintiff's lawyer in Ashcroft v. Raich, another key Supreme Court showdown, which was argued before the court last fall. Raich is a challenge to the federal government's attempt to enforce drug laws that conflict with the effort by California (and 10 other states) to allow the use of medical marijuana. Barnett represented Angela Raich, a woman who suffered from cancer that often confined her to a wheelchair but who said she felt much better after being prescribed medical marijuana. The author of a provocative book, ''Restoring the Lost Constitution,'' Barnett argues that courts should evaluate economic regulations with a ''presumption of liberty'' rather than with a presumption of deference. His book identifies a series of regulations that he says the courts should consider constitutionally suspect, from environmental laws to laws forbidding the mere possession of ordinary firearms, therapeutic drugs or pornography. ''The court has not really limited Congress's power very much,'' Barnett says. ''But the fact that it was willing to limit it at all has been an important principle. If it now basically throws in the towel, it will be pretty demoralizing to this whole side.''

In February, a day after the Kelo and Lingle cases were argued before the court, I phoned Epstein and asked him how he thought they had gone. ''I think the exile's going to be a little longer after yesterday,'' he said with a sigh. ''It's a very sad day to watch these guys work.'' Epstein expressed confidence that even if his side loses, the battle for the Constitution in Exile will continue at the state level -- ''the emotional grab of those eminent-domain cases is so strong,'' he said -- but confessed that he had little hope, for now, in the Supreme Court. ''They really have gone back to the extreme 1937 reaction that anything that concerns the economic well-being of this nation is simply a political matter,'' he said. ''If the Constitution is an annoying obstacle, they'll just get it out of their way.''

VI. Packing the Courts

If supporters of the Constitution in Exile lose all three cases now before the Supreme Court, what happens next? The general consensus, according to Greve, is that the movement should focus its energies on the appointment of sympathetic judges. ''I think the judicial appointments are what matters most of all,'' Greve says. ''And Bush's renomination of the rejected judges is a way of saying, Let's cram the same judges back in their face. That's intended as a sign that they mean business.''

Three candidates recently renominated by Bush for positions on the federal appellate courts are sympathetic to the ideas of the Constitution in Exile movement. In addition to William Pryor, the former attorney general of Alabama whom Greve praises, there is Janice Rogers Brown, a justice on the California Supreme Court and an outspoken economic libertarian. An African-American and a daughter of sharecroppers, Brown has been promoted by many libertarians as an ideal Supreme Court candidate. Known for her vigorous criticism of the post-New Deal regulatory state, Brown has called 1937, the year the Supreme Court began to uphold the New Deal, ''the triumph of our socialist revolution,'' adding in another speech that ''protection of property was a major casualty of the revolution of 1937.'' She has praised the court's invalidation of maximum-hour and minimum-wage laws in the Progressive era, and at her Senate confirmation hearing in 2003, she referred disparagingly to ''the dichotomy that eventually develops where economic liberty -- property -- is put on a different level than political liberties.''

From Greve's point of view, another sympathizer whom Bush has nominated for a federal appellate judgeship is William G. Myers III, who was the chief lawyer at the Department of the Interior and a lifelong advocate for mining and grazing interests. Democrats in the Senate have expressed special concern about Myers's narrow view of Congress's power to pass environmental regulations: he has criticized the ''fallacious belief that the centralized government can promote environmentalism'' and has denounced the Endangered Species Act and Clean Water Act as ''regulatory excesses.'' He also helped to found Cattlemen Advocating Through Litigation, a conservative group that challenges environmental regulations in court. On March 17, he was the first candidate approved by the Judiciary Committee, on a party line vote.

For Democrats in the Senate, a main cause of concern is not only the principles that these judges embrace but also the potential conflicts of interests that their loyalties can create. For example, Douglas Ginsburg, the judge who introduced the phrase Constitution in Exile, serves on the board of a group called the Foundation for Research on Economics and the Environment, or FREE, which favors free-market solutions to environmental problems. As Douglas Kendall of the Community Rights Counsel, an environmental watchdog group, has reported, between 1992 and 2001 Ginsburg took more than a dozen all-expenses-paid trips, mainly to Montana, under FREE's auspices, where he often participated in its judicial-education seminars. In 1999, a constitutional challenge to emission regulations in the Clean Air Act was accepted for argument before Ginsburg. The lawyer who was challenging the regulations on behalf of several industry groups, Edward Warren, had also served on the board of FREE. Ginsburg joined an opinion accepting Warren's argument that the emission regulations were unconstitutional. A dissenting opinion charged the majority with ignoring ''the last half century of Supreme Court jurisprudence,'' and the Supreme Court unanimously reversed the decision two years later in an acerbic opinion written by Scalia.

The battle over the ideologies and allegiances of appellate judges is, of course, something of a dress rehearsal for the Supreme Court nomination to come. Greve and his colleague Christopher DeMuth, the president of the American Enterprise Institute, say they are heartened by the judges reportedly on Bush's short list, many of whom they consider broadly sympathetic to their views. ''I think the president and his top staff have shown really good taste in their court of appeals nominations,'' DeMuth told me during a visit to the institute, ''and when the Supreme Court opening comes up, they will be very strongly inclined to nominate people from our side.''

DeMuth was especially enthusiastic about the possible candidacy of Michael W. McConnell, a federal appellate judge in Denver and a former University of Chicago law professor who worked with DeMuth at the Office of Management and Budget in the Reagan administration. Greve explained that McConnell not only has ''impeccable social conservative credentials'' but also will ''give you a vision of federalism that looks like the Constitution we once had, and he's intellectually powerful enough to pull it off on the court.'' Most of the other names on Bush's short list have similar qualities: J. Michael Luttig, a federal appellate judge in Virginia, is a vigorous proponent of the view that some federal environmental laws exceed Congress's powers to regulate interstate commerce; John Roberts, a federal judge in Washington, has also questioned whether some applications of the Endangered Species Act exceed Congress's regulatory powers.

The influence of the Constitution in Exile movement on judicial nominations is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.''

VII. America, Deregulated

If they win -- if, years from now, the Constitution is brought back from its decades of arguable exile -- and federal environmental laws are struck down, the movement's loyalists do not expect the levels of air and water pollution to rise catastrophically. They are confident that local regulations and private contracts between businesses and neighbors will determine the pollution levels that each region demands. Nor do they expect vulnerable workers to be exploited in sweatshops if labor unions are weakened: they anticipate that entrepreneurial workers in a mobile economy will bargain for the working conditions that their talents deserve. Historic districts, as they see it, will not be eviscerated if zoning laws are scaled back, but they do imagine there will be fewer brownstones and more McMansions. In exchange for these trade-offs, they insist, individual liberty -- the indispensable guarantee of self-fulfillment and happiness -- would flourish far more extensively than it does today.

Of course, there would be losers as well as winners in a deregulated market economy, and history provides plenty of reasons to be concerned about the possibility of abuse. Even the relatively modest deregulation of today's increasingly global and fluid U.S. economy may provide something of a cautionary tale. From Enron to illegal trading by mutual funds and bid-rigging in the insurance industry, corporate scandals are keeping consumer advocates like Eliot Spitzer quite busy. America, at the moment, is engaged in an important debate about the relative merits and dangers of the market economy, and the advocates of the Constitution in Exile are aware that they cannot achieve ultimate success without persuading a majority of the American people to embrace their vision.

But a political transformation in their favor remains, for the moment, remote, and they appear content, even eager, to turn to the courts to win the victories that are eluding them in the political arena. Advocates of the movement are entirely sincere in their belief that the regulatory state is unconstitutional as well as immoral and that a principled reading of the Constitution requires vigorous enforcement of fundamental limits on state power. Nevertheless, it is a troubling paradox that conservatives, who continue to denounce liberals for using courts to thwart the will of the people in cases involving abortion and gay marriage, now appear to be succumbing to precisely the same temptation. If the lessons of the past 60 years teach us anything, when judges try to short-circuit intensely contested democratic debates, from the New Deal cases to Roe v. Wade, they may provoke a fierce political backlash that sets back the movement they are trying to advance. In this sense, even if the Constitution in Exile movement manages to transform the courts before it has transformed the country, it may find that it has won less than it hoped.

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is at work on a book about democracy and the courts, to be published next year.

2005 The New York Times Company