Takings: Of Maginot Lines and Constitutional Compromises
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Description
The central task of constitutional law is to demarcate the scope of individual freedom within a system of government power. The very existence of an articulated constitution suggests that some form of social control, coercive and unwanted by some, is permissible. But any showing that some government power is permissible is only a prelude to determining its permissible extent. One important element in a system of social control is the doctrine of enumerated powers, which has been effectively eviscerated by the expansive interpretations of the commerce clause. The second is the specific protection of certain liberties against the state. In my book Takings, I argued that given these limitations in our Constitution, the scope of government power, both at the state and the federal level, is far narrower than has been traditionally believed. I also insisted that this restrictive conception of government also follows from the first principles of political theory. In making these dual claims, I have been rightly understood as having asserted that the Constitution forbids the common forms of legislation, regulation, and taxation which comprehensively have come to be known as the New Deal. Notwithstanding the bitter denunciations that the book has received, both for its constitutional and political theory, I continue to believe that the proper set of social relations are essentially as they were described in Takings. It seems evident, however, that my position has not carried the day. Indeed it may be a minority position held by one person—me. Nonetheless, it continues to attract a fair share of attention, and I hope that it has caused serious scholars to reexamine old verities in search of newer and better understandings. The three essays by Professors Lino A. Graglia, Stephen Macedo, and Frank Michelman are part of the ongoing commentary that Takings has generated. My task here is not to restate anew my basic position; Macedo and Michelman have provided the reader with a careful road map of my theory in their contributions to this volume. Instead, I shall content myself with answering their major criticisms of my position. First, I shall address Graglia's roundhouse attack on my book; Graglia erects a Maginot line against political theory, which, once overrun, excludes him from any important debate over the structure and meaning of our Constitution. Thereafter, I shall turn to the more restrained criticisms of Macedo and Michelman, both of whom insist that my position on the takings clause is flawed because it unnecessarily downgrades the republican commitment to citizen participation in the search for the common good. I shall first try to establish that my own constitutional position preserves what is good about republican institutions. I shall then offer to Michelman, and for that matter to Macedo, a constitutional compromise, which (for all I know) they might accept. But first I must respond to Graglia.
Source Publication
Liberty, Property, and the Future of Constitutional Development
Source Editors/Authors
Ellen Frankel Paul, Howard Dickman
Publication Date
1990
Recommended Citation
Epstein, Richard A., "Takings: Of Maginot Lines and Constitutional Compromises" (1990). Faculty Chapters. 413.
https://gretchen.law.nyu.edu/fac-chapt/413
