1 Attributed to Satchel Paige.Google Scholar

2 For some of Frankfurter's most revealing statements of his deferential philosophy, see his opinions in West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 628 (1943); Dennis v. United States, 341 US. 494 (1951); and Baker v. Carr, 369 U.S. 186 (1962).Google Scholar

3 See, e.g., Lochner v. New York, 198 US. 45 (1905) (laissez-faire activism); National League of Cities v. Usery, 426 U.S. 833 (1976) (states' rights activism); Moore v. East Cleveland, 431 U.S. 494 (1977) (pro-family activism); Zablocki v. Redhail, 434 US. 374 (1978) (pro-marital activism); Wisconsin v. Yoder, 406 U.S. 205 (1972) (pro-religious activism).Google Scholar

4 Wolfe at 205, 259 (“Dissatisfaction with the Constitution—either because its prescriptions are wrong or, more often, because they do not go far enough—is at the heart of the development of modem constitutional interpretation and judicial review“); Epstein at 315, 323–29 (noting “the broad consensus that exists today in favor of making public welfare payments,” which Epstein opposes).Google Scholar

5 Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1961).Google Scholar

6 Wolfe ignores the severe challenges to his interpretive approach raised by recent literary, philosophic, and radical legal movements. To be widely persuasive any defender of his position must eventually confront them. This omission is all the more surprising since the most influential literary critics, whom many radical legal scholars follow, defend perspectives rooted in Nietzsche's arguments concerning the way interpreters inevitably impose their own perspectives on texts; the illusory, partly grammatically based conception of the subject; and the deceptiveness of all language (see, e.g., Walter Kaufmann, ed., Basic Writings of Nietzsche, 201–4, 213–14, 22-21, 225 (“Beyond Good and Evil”), and 554–55 (“On the Genealogy of Morals”) (New York: Modem Library, 1968); Friedrich Nietzsche, The Will to Power 148–50, 266–67, 27676, 304–5 (New York Vintage Books, 1968). These arguments are familiar to anyone with Wolfe's reverence for the works of the great political philosophers. But Wolfe does present clearly, if rather tersely, the more limited expressions of these points in the most influential works of early modern American jurisprudence, and that can suffice for my purposes here. Examples of the recent “hermeneutical” turn in legal theory can be found in Symposium: Law and Literature, 60 Tex. L. Rev. 373–586 (1982); W. J. T. Mitchell, ed., The Politics of Interpretation (Chicago: University of Chicago Press, 1983); Lief H. Carter, Contemporary Constitutional Lawmaking (New York: Pergamon Press, 1985).Google Scholar

7 Hans-Georg Gadamer, Truth and Method 485–86 (New York: Crossroad Publishing Co., 1982).Google Scholar

8 Wolfe at 60. At 228, he includes a quotation from Holmes, favored by Cardozo, that is as he indicates a “nicely stated” expression of one aspect of this argument “One of my favorite paradoxes is that everything is dead in twenty-five (or fifty) years. The author no longer says to you what he meant to say. If he is original, his new truths have been developed and become familiar in improved form—his errors exploded.”Google Scholar

9 Alexander Bickel, The Least Dangerous Branch 39 (Indianapolis: Bobbs-Merrill, 1962).Google Scholar

10 Wolfe at 203, 205, 214–15, 228, 240. Wolfe observes rightly that even if the Constitution has deficiencies, it is not clear that judges should haul away the rubbish, a point I would generally endorse. But if the preceding objections have force, some “updating” via interpretation is inevitable. There are obvious practical advantages in having the judiciary make minor alterations, and some desired changes may be difficult to enact through majoritarian processes (as Wolfe also notes at 246, 354).Google Scholar

11 Regrettably, Wolfe avoids addressing this central issue by treating the question of the “factors” that led to the “transformation of the judicial power” as largely outside the scope of his inquiry. Wolfe at 9–10.Google Scholar

12 In discussing traditional interpretation, Wolfe deals with four topics. The logic of his main argument suggests they should be ordered as a discussion of the framers' preferred rules of interpretation, followed by the type of judicial review those rules support, and then by illustration of how these views are put to work first in Marbury v. Madison, then in the other major cases of the early 19th century. Instead, Wolfe inserts his chapters on Marshall, then Marbury, between his discussion of the prevalent interpretive rules and his account of the dominant mode of judicial review. When the cases are considered before we see what kind of judicial review is supposed to flow from the basic rules, it is harder for the reader to judge whether the rules, the general account of judicial review, and the major cases are all as cohesive and reinforcing as Wolfe wants to claim.Google Scholar

13 Witness his discussion of activist “natural-justice” review in the traditional era and his argument that it led to judicial legislation in the Lochner era. Wolfe at 108–12, 144–56.Google Scholar

14 Wolfe at 358 n.1; Joseph Story, Commentaries on the Constitution of the United States, bk. 3 ch. 5 (Boston: Hilliard, Gray & Co., 1833); Francis Lieber, Legal and Political Hermeneutics (Boston: Little, Brown, 1839).Google Scholar

15 Wolfe at 77, 86, 113. One suspects it would also have been disputed by Blackstone, the great advocate of parliamentary supremacy, if he had ever applied his rules of interpretation to the American Constitution.Google Scholar

16 Wolfe at 19. Most notably, Blackstone says a judge is entitled to decide a case against the literal meaning of the words in a law if they carry “a very absurd signification.” Wolfe claims this means not simply that the law is “bad or unjust” but that it literally “makes no sense.” He cites Blackstone's example, following Puffendorf, of the absurdity of applying a law against drawing blood to a doctor aiding a man who had fallen down in the street in a fit. This example in fact works against Wolfe's claim. It is not nonsensical to prevent doctors from drawing blood precipitously, especially in a street emergency; proper restrictions are much debated today. It may be unwise, “bad or unjust.”Google Scholar

17 Wolfe at 77, citing Alexander Hamilton, James Madison, John Jay, The Federalist Papers 482 (New York New American Library, 1961).Google Scholar

18 Story, Commentaries on the Constitution of the United States 384, 387, 397, 411–12 (Boston: Hilliard, Gray & Co., 1833).Google Scholar

19 Story included in his case a long assault on Jeffersonian states' rights interpretations and the attendant doctrine of “strict construction.” He also cited Marshall's opinions frequently, laying greatest stress on the passages in Gibbons v. Ogden where Marshall, too, argued that we should rely above all on the “general views and objects” of the Constitution. Id. at 390–92, 402–3, 412, 441.Google Scholar

20 Lieber, Legal and Political Hermeneutics 55–58 (Boston: Little & Brown, 1839). Lieber would thus be likely to describe the developments Wolfe details not as an improper shift from “interpretation to judge-made law” but as a quite valid transition “from interpretation to construction,” at least in many cases.Google Scholar

21 Id. at 181, 183, 186.Google Scholar

22 12 Wheat. 213 (1827).Google Scholar

23 See, e.g., George Dangerfield, The Awakening of American Nationalism: 1816–1828, at 5–19, 231–41. (New York: Harper & Row, 1965).Google Scholar

24 See, e.g., Robert V. Remini, Andrew Jackson and the Course of American Freedom: 1822–1832, at 276–77 (New York: Harper & Row, 1982) (discussing Jackson's refusal to enforce Marshall's ruling in Worcester v. Georgia, 6 Pet. 515 (1832)).Google Scholar

25 Epstein at 3–6, 10, 13, 15, 31, 42, 59–60, 65–66, 112, 163–64, 197–99, 331–32, 337.Google Scholar

26 Id. at 61, 70, 85, 120, 126, 166, 199–201, 222, 312 n.14, 322.Google Scholar

27 Wolfe at 150–156. Epstein does not agree with all aspects of the Lochner era, but he does applaud many features of the case's reasoning, at 108–9, 128, 277–80.Google Scholar

28 Epstein insists that ” all regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state” (at 95; italics in original). See also his formulations at 65, 112.Google Scholar

29 The story of Themistocles stems from Herodotus; a modem recounting is Victor Ehrenberg, From Solon to Socrates 154–65 (New York: Methuen, 1968).Google Scholar

30 Epstein at 15, 167. In fairness, at 295 Epstein does accept the legitimacy of taxation for the common defense, even if a minority feels aggrieved, and he recognizes that its members will not be economically compensated. He says the “constitutional command for a single foreign policy” justifies these departures from his usual insistence on compensation, a position consistent with his earlier acknowledgment that the “Constitution was not an eminent domain clause writ large.” But as just noted, Epstein insists on fidelity to one's general theory over particular textual phrases, and his theory does hold that “all taxes are subject to scrutiny under the eminent domain clause,” including scrutiny via his “disportionate impact” test (at 283, 289, 311). Hence these concessions are, at best, not fully incorporated into his general argument; and I contend that they decisively undermine it.Google Scholar

31 For Epstein's own doubts about the economic adequacy of such forms of “implicit” or “in-kind” compensation, see, e.g., 269, 271, 273, 295, 316–17, 320, 323.Google Scholar

32 Epstein also makes his misleading invocation of Locke easier by neglecting the most pertinent recent works on Locke's economic thought. See, e.g., James Tully, A Discourse on Property: John Locke and His Adversaries (New York: Cambridge University Press, 1980) (hereinafter cited as “Tully, Discourse”); Joyce Oldham Appleby, Economic Thought and Ideology in Seventeenth-Century England (Princeton, N.J.: Princeton University Press, 1978).Google Scholar

33 Epstein at 11; John Locke, Two Treatises of Government 11.32: 332; 11.38: 337 (New York: Cambridge University Press, 1963) (hereinafter cited as “Locke”).Google Scholar

34 Epstein at 11; Locke at 11.95: 375, 11.123: 395.Google Scholar

35 See the account of Locke's aims in Tully, Discourse at 153–54 (cited in note 32).Google Scholar

36 Locke at 1.42: 206.Google Scholar

37 Tully, Discourse, at 170 (cited in note 32); John Locke, Venditio, in John Dunn, Justice and the Interpretation of Locke's Political Theory, 17 Pol. Stud. 68–87 (1968); cf. Ian Shapiro, The Evolution of Rights in Liberal Theory 119–20, 141–42 (New York: Cambridge University Press, 1986).Google Scholar

38 Locke at 11.38: 337; 11.45: 341; 11.50 344; 11.120 393; 11.138:406–7. See also Tully, Discourse, at 168 (cited in note 32).Google Scholar

39 Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent (New Haven: Yale University Press, 1985).Google Scholar

40 I have argued for the diversity of Lockean goals, and the importance of personal liberty in particular, in Rogers M. Smith, Liberalism and American Constitutional Law 13–35, 198–225, (Cambridge: Harvard University Press, 1985).Google Scholar

41 See, e.g., Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967); Gordon S. Wood, The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1968); J. G. A. Pocock, The Machiavellian Moment (Princeton, N.J.: Princeton University Press, 1975); Henry F. May, The Enlightenment in America (Oxford: Oxford University Press, 1976); John P. Diggins, The Lost Soul of American Politics (New York: Basic Books, 1984).Google Scholar

42 Recent literature on the interactions of early American political, legal, and economic ideologies includes Morton J. Horwitz, The Transformation of American Law (Cambridge: Harvard University Press, 1977); Drew R. McCoy, The Elusive Republic (Chapel Hill: University of North Carolina Press, 1980); Joyce Appleby, Capitalism and a New Social Order (New York: Oxford University Press, 1984); Lawrence M. Friedman, A History of American Law 105–279 (2d ed. New York: Simon t Schuster, 1985).Google Scholar

43 L. T. Hobhouse, Liberalism (New York Oxford University Press, 1964, first published 1911).Google Scholar

44 An audacity that extends to the suggestion that sociobiology has shown economic theory's portrait of human behavior as rationally self-interested to be “a biological conclusion” (at 341 n.19). If judges are entitled to rely on sociobiological “truth” to uphold antiwelfare economic theories, we have indeed returned to economic social Darwinism in its rawest form.Google Scholar