Econtalk: Epstein on the Constitution

If you are at all interested in the evolution of the US Constitution then you will learn from this Econtalk where Russ Roberts interviews constitutional scholar Richard Epstein of New York University and Stanford University’s Hoover Institution.

At around 52 minutes, following a summary of the constitutional history which lead to the creation of the fourth branch of government – the “Administrative State”, Richard Epstein said:

You can’t create wealth if all you are interested in doing is transferring from one party to another.

The transcript continues with this exchange:

Russ: Ah–a sigh. A long sigh.

52:35 Russ: It crosses my mind, as I ask the guests from time to time a variant of this question, that, we get the Constitution we deserve. You and I, we like the Constitution of 1787. Other people like the 1937 one or the 2007. And we don’t have many people that agree with us. So, there are these underlying political forces–again, all these ideas about theories of judicial interpretation, that’s just window dressing. What’s really going on is, the President nominates Supreme Court justices that are politically popular, and basically the ones that are politically popular, because the President wants to be politically popular, and his party wants to be popular, are going to be justices that don’t have the “right theory” of the Constitution, but who open the door to laws, legislation, that most people want. And what most people want is a more active Federal government.

Epstein: (…snip…) Most people want–I think most people want a more active Federal government to advance the particular cause that they champion and a smaller Federal government with respect to all those things which harm them so greatly. And so what happens is you still can get large numbers of people who will quote to you Gerald Ford when he says to you: the government is big enough to give you everything you want; it’s big enough to take away everything that you have.

And most people straddle that particular kind of an insight. So they don’t know which side they are on. But that’s why these academic debates, so called, are so absolutely important. Because quite simply, the stakes are enormous. It’s very clear that there is no sort of automatic guardian of the public welfare that sits outside of human beings, by divine origin or divine power to structure these things, so what you have to do is to change the climate of opinion in the hopes that once you do that, you’ll be able to change the input of the judges on the Court. And remember, it is very common for justices on the U.S. Supreme Court to shift one way or another. Harry Blackmun started out in some sense as a Nixon appointee, and he does the abortion cases because he worked for the Mayo Clinic, and by God, by the time he’s done he’s a member of the liberal faction. Indeed, if you look at the Supreme Court there are many conservative Presidents who appointed liberal justices. I think I did a rough calculation once that between, say, 1956 and 2005, roughly speaking, what you could say was that each year on average there were three justices appointed to the Supreme Court by conservative presidents who turned out to have deeply liberal sentiments.

Russ: My theory of that is they like to go to good parties. So, after you’ve been in Washington for a while, and most people are not like you, you think: Well, this isn’t any fun. 

This is a very information dense interview. I’ll have to listen at least a couple more times to absorb it all.