How Progressives Rewrote the Constitution

March 6, 2006

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How Progressives Rewrote the Constitution, a new book published today by the Cato Institute, explores the fundamental shift in political and economic thought the Progressive Era brought about and how the Supreme Court in the early decades of the 20th century, invoking those ideas, undermined the Constitution.

Richard A. Epstein, who teaches law at the University of Chicago and is a Cato adjunct scholar, demonstrates how Progressives attacked many of the “Old Court’s” key decisions and eventually weakened the Court’s thinking concerning limited federal powers and the protection of individual rights. Working with a primitive understanding of economics and ignoring evidence that competitive markets were steadily producing prosperity, Progressives opted instead for government-created cartels and monopolies.

Whether in their Commerce Clause jurisprudence or their treatment of antitrust, labor regulation, businesses “affected with the public interest,” or civil liberties, Progressives on the Court undermined the Framers’ principles, paving the way for the modern redistributive and regulatory state.

“The Old Court’s mixture of broad liberties and limited police power works far better,” writes Epstein. “The Progressives come out best on the few occasions when they couch their decisions in an intellectual framework they generally discarded.”

How Progressives Rewrote the Constitution shows that our modern “constitutional law,” fashioned largely by the New Deal Court in the late 1930s, has it 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.

Charles Fried, Harvard law professor and former U.S. Solicitor General, notes that How Progressives Rewrote the Constitution is “a challenging and amusing book — Richard Epstein at the top of his game.”

About the Author

Richard A. Epstein is an adjunct scholar at the Cato Institute and James Parker Hall Distinguished Service Professor of Law at the University of Chicago. He is the author of Takings: Private Property and Eminent Domain and the Cato book Simple Rules for a Complex World.

About the Book

How Progressives Rewrote the Constitution
by Richard A. Epstein
$15.95 hardback; 151 pages
ISBN: 1-930865-87-2
Publication date: February 23, 2006

About the Institute

The Cato Institute is a nonprofit, public policy research foundation in Washington, DC. It is libertarian or classical liberal in its outlook, and it receives the bulk of its funding from individuals and foundations.

Since 1992 the Cato Institute’s books have been distributed to the trade by the National Book Network.