The Constitutional Maverick

Richard A. Epstein:

The maverick takes issue with both modern liberals and modern conservatives because he alone refuses to abandon two key pillars of our classical liberal constitutional theory: limited government and strong property rights. The modern maverick thus works in the Lockean tradition that was ascendant during the founding period. This classical liberal approach should not be misconstrued to hold that all forms of legislation and taxation are illegitimate. The classical liberal is no hard-line libertarian, for she accepts the legitimacy of state power, even if she thinks that it is always an uphill battle to justify government limits on individual freedom. Stated otherwise, the classical liberal does not ask, as do modern liberals and conservatives, why any assertion of individual rights poses a challenge to democratic institutions. Rather, he insistently questions the extent to which democratic institutions may misuse political power to limit individual rights. The position is not geared solely to economic issues of private property and contractual freedom; it also extends to such key areas of human interaction as political speech and religious conscience.