Richard Epstein's Classical Liberal Constitution : What Might Benjamin Franklin Have Thought?

This essay accepts the normative vision Richard Epstein sets forth in The Classical Liberal Constitution, but refracts that vision through some considerations of positive political economy. In response to a questioner who asked at the conclusion of the Constitutional Convention what kind of constitution had been created, Benjamin Franklin is reported to have answered “a republic, if you can keep it.” Franklin's response shows that he recognized that regimes are subject to constitutional erosion. This essay applies Franklin's insight to Epstein's formulation. The original liberal republic has not been kept. Epstein sets forth a judicial path along which that path might be recovered. Considerations from political economy suggest that more than judicial interpretation is at work in the constitutional erosion Epstein describes, and some understanding of those extra-judicial processes is also significant for any effort aimed at restoring a liberal republic