How Progressives Rewrote the Constitution explores the fundamental shift in political and economic thought of the Progressive Era and how the Supreme Court was used to transform the Constitution into one that reflected the ideas of their own time, while undermining America’s founding principles. Epstein examines key decisions to demonstrate how Progressives attacked much of the legal precedent and eventually weakened the Court’s thinking concerning limited federal powers and the protection of individual rights. Progressives on the Court undermined basic economic principles of freedom and competition, paving the way for the modern redistributive and regulatory state. This book shows that our modern “constitutional law,” fashioned largely by the New Deal Court in the late 1930s, has its roots in Progressivism, not in our country's founding principles, and how so many of those ideas, however discredited by more recent economic thought, still shape the Court's decisions.

If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance. Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind? Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard Epstein laments this complacency which, he believes, explains America’s current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers’ original text, and to the limited government this theory supports. “[An] important and learned book.” —Gary L. McDowell, Times Literary Supplement “Epstein has now produced a full-scale and full-throated defense of his unusual vision of the Constitution. This book is his magnum opus...Much of his book consists of comprehensive and exceptionally detailed accounts of how constitutional provisions ought to be understood...All of Epstein’s particular discussions are instructive, and most of them are provocative...Epstein has written a passionate, learned, and committed book.” —Cass R. Sunstein, New Republic

The country's leading libertarian scholar sets forth the essential principles for a legal system that best balances individual liberty versus the common good.

Levinson here argues that too many of our Constitution's provisions promote either unjust or ineffective government. Under the existing blueprint, we can neither rid ourselves of incompetent presidents nor assure continuity of government following catastrophic attacks. Worse, our Constitution is the most difficult to amend or update in the world. Levinson boldly challenges the Americans to undertake a long overdue public discussion on how they might best reform this most hallowed document and construct a constitution adequate to our democratic values.

Most people think that the Supreme Court has a rough balance between left and right. This is a myth; in fact the justices once considered right-wing have now taken the mantle of the Court's moderates, and the liberal element has all but disappeared. Most people also think that judicial activism is solely a liberal movement. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has engaged in an unprecedented record of judicial activism. These two factors are feeding a movement to restore what many conservatives call "The Constitution in Exile," by which they mean the Constitution as it existed before the Roosevelt administration. Radicals in Robes explains what the restoration of this constitutional vision would mean. It would mean the end of the FCC, the SEC, the EPA, and every other federal agency that enacts regulations that have the force of law. It would mean that the clause of the First Amendment that says that Congress may make no law "respecting an establishment of religion" would be turned on its head. Marriage laws and many other familiar areas of modern life are all in the sights of this conservative movement. Radicals in Robes takes judicial philosophy out of the law schools and shows what it means when it intersects partisan politics. It pulls away the veil of rhetoric from a dangerous and radical right-wing movement and issues a strong and passionate warning about what conservatives really intend. One of the most respected legal theorists in the country, Cass R. Sunstein here issues a warning of compelling concern to us all.

This book argues that Congress's process for making law is as corrosive to the nation as unchecked deficit spending. David Schoenbrod shows that Congress and the president, instead of making the laws that govern us, generally give bureaucrats the power to make laws through agency regulations. Our elected "lawmakers" then take credit for proclaiming popular but inconsistent statutory goals and later blame the inevitable burdens and disappointments on the unelected bureaucrats. The 1970 Clean Air Act, for example, gave the Environmental Protection Agency the impossible task of making law that would satisfy both industry and environmentalists. Delegation allows Congress and the president to wield power by pressuring agency lawmakers in private, but shed responsibility by avoiding the need to personally support or oppose the laws, as they must in enacting laws themselves. Schoenbrod draws on his experience as an attorney with the Natural Resources Defense Council and on studies of how delegation actually works to show that this practice produces a regulatory system so cumbersome that it cannot provide the protection that people need, so large that it needlessly stifles the economy, and so complex that it keeps the voters from knowing whom to hold accountable for the consequences. Contending that delegation is unnecessary and unconstitutional, Schoenbrod has written the first book that shows how, as a practical matter, delegation can be stopped.