Richard Epstein is the Don Quixote of the academic world. He loves to joust with other professors over the sacred cows of their politics, especially if they are to his left-as 99 percent of the human race must surely be.
Cite the most accepted chapters of enlightened thought and he will dismiss them as sloppy logic. Suggest a piece of progressive legislation and he’ll explain why it is doomed to failure.
” `Just say no’ shouldn’t be limited to drugs,” said Epstein, a University of Chicago law professor. “Congress should recall that motto when expensive, untested programs are proposed, like Hillary Clinton’s health-care plan.”
Epstein’s war with the 20th Century is largely a one-professor campaign. On many campuses, the clock is set ahead to a kind of intellectual daylight-saving time, a speedup intensified by the current vogue of political correctness and multiculturalism.
At a recent U. of C. forum on politics and the university, Epstein’s debating opponent, Rutgers University professor Michael Warner, was introduced as a practitioner of “queer theory,” as some gay-studies scholars provocatively call their field.
Reciting a litany of prejudices gay people face, Warner cited a publicly funded AIDS-awareness TV campaign. He faulted the ads for not describing the sexual practices through which the disease is transmitted, an omission he attributed to the reluctance of heterosexuals to contemplate the nitty-gritty reality of gay sex.
Epstein responded with a simpler explanation.
“Your mistake,” he said, “was to assume that government could solve your problems. Any group that takes public money finds its message gets watered down to an inoffensive least common denominator.”
Epstein, 50, has been plugging away on the proposition that public money is the root of much evil for the 25 years of his teaching career, which began at the University of Southern California. He publishes at a furious pace few professors could match, in academic journals and on the op-ed page of The Wall Street Journal. So his running dissent from academia’s liberal orthodoxy is widely known, if not often seconded, by legal scholars.
“The liberal philosophy of government reminds me of Leo Durocher’s famous challenge: `Let’s him and you fight,’ ” Epstein said. “What the liberal is really saying is: `I’ll redistribute your money to him.’ “
Teaching that politicians with checkbooks in their hands are not to be trusted has hardly endeared Epstein to politicians, especially in the nation’s capital, where dishing out taxpayers’ money is the local sport.
Sen. Joseph Biden (D-Del.) prominently waved one of Epstein’s books, “Takings,” in front of the TV cameras during the 1991 Judiciary Committee hearings on the nomination of Clarence Thomas to the U.S. Supreme Court. Biden’s body-language suggestion was that Thomas subscribed to Epstein’s views and thus was unfit for the highest court in the land.
Thomas, of course, survived Biden’s guilt-by-association ploy. But “Takings,” published in 1985, might have cost its author a justice’s black robes, notes Thomas Grey, a Stanford University law professor and a law-school classmate of Epstein’s at Yale University.
“Richard was being talked about as a Supreme Court nominee before `Takings’ was published,” Grey said. “But the book made it seem he held too extreme a position.”
In the book, Epstein argued that much recent public policy (progressive taxation, social-welfare programs, even zoning) violates the 5th Amendment’s prohibition against government seizure of a citizen’s property without proper compensation.
Reviewing Epstein’s book in the Miami Law Review, Grey said: “In one sense, `Takings’ belongs with the output of the constitutional lunatic fringe, the effusions of gold bugs, tax protestors and gun-toting survivalists.”
That socialist GOP
It’s not just Democrats and liberals who abhor Epstein’s views. Republicans and conservatives, too, sometimes run from him like the plague.
In 1990, Republican congressional staff members asked if Epstein would testify on a pending civil rights bill, which their party opposed. But the invitation was promptly withdrawn when Epstein previewed his speech, his position being too far to the right even for the party of the Right.
Epstein took the snub with philosophical equanimity. He is fond of referring to the GOP (only half in jest) as “socialist.”
Last year, Epstein essentially put that rejected testimony into a book whose title tells it all: “Forbidden Grounds: The Case Against Employment Discrimination Laws.”
In it he argues that anti-discrimination laws do more harm than good, being based upon a false reading of American history. He observes that in the days of Jim Crow, black Americans suffered discrimination at the hands of government. They were confined to segregated schools and public facilities and barred from voting by state and local laws that, Epstein agrees, were rightly overturned by the federal courts in the 1950s and ’60s.
But if those inequities were perpetrated by government, he asks, why should private employers now be burdened with making reparations for them? Yet, Epstein argues, that is exactly what civil rights legislation has done.
An economic argument
Epstein passes over the usual conservative criticism of affirmative action as being nothing more than reverse discrimination and attacks it with a purely economic argument, claiming that it subjects business owners to a smothering mass of bureaucratic regulations. That distracts them from the basic task of any entrepreneur: making the best product he can at the lowest possible price.
Instead, he says, megabucks corporations and ma-and-pa enterprises alike have to answer to distant masters in the nation’s capital, government officials who don’t understand the complexities of the marketplace and don’t have to test do-gooder assumptions against the weekly reality of meeting a payroll.
Hard-pressed by foreign competition, American industry can’t afford that handicap, Epstein argues, noting that when the ecomony falters everyone suffers, regardless of skin color.
“The Civil Rights Act of 1964,” Epstein once said, debating a representative of the American Civil Liberties Union, “in my view was a mistake in the sense that it brought an enormous concentration of power into Washington.”
Reducing human rights to ledger-book analysis is not the way to guarantee lunch-table partners at the faculty club, universities having become bastions of affirmative action where prospective students and faculty members are now presorted by race and sex.
Popular, at a safe distance
Yet Epstein is genuinely popular with his colleagues, in good part because he frequently uses his self-effacing sense of humor to deflect attention from his razor-sharp intellect and archconservatism. At the U. of C., he is the faculty’s spokesman to the administration, a sensitive position because of the intramural ivory-tower politics.
An infectious, schoolboy enthusiasm that even liberals find attractive also helps Epstein avoid the academic equivalent of tar and feathers. The more outlandish (in liberal eyes) the position he is arguing, the more rapid-fire his delivery becomes. Working up to the clincher of an argument, he quite literally spits forth concepts drawn from ancient philosophers and Roman jurists, frothily mixing them with the street-corner aphorisms of Epstein’s native Brooklyn.
Old hands in his law school courses warn newcomers that students who sit in the front row will be showered with more than ideas. Each generation of students claims to have heard from its predecessors that, once upon a time, a group of Epstein’s students marked the final day of the term by bringing umbrellas to class.
Geoffrey Stone, dean of the U. of C. Law School, reports that Epstein is popular with a wide variety of students, including many who dissent vigorously from his politics. To those who do, he offers a bit of advice: “The thing to remember with Richard is not to grant his premises going into an argument. If you do, then his logic flows inexorably and you’ve lost.”
New Deal fallout
Epstein says he came by his premises watching his parents wrestle with the consequences of their New Deal liberalism.
His father, Bernard, graduated from City College of New York in the 1920s, when that inner-city commuter college offered immigrants’ children a first step on the ladder of upward mobility. A doctor, Epstein’s father attached an informal training program to his practice, helping a younger generation of poor kids become medical technicians.
But the intrusion of big government in the 1960s put an end to such experiments in private benevolence as Bernard Epstein’s apprenticeships, which were ruled in violation of one or another of the regulations to which medicine was subject. Meanwhile, under pressure from minority groups, City College dropped its stiff admissions requirements in favor of an open admissions policy, which diversified the campus but at the cost of academic quality.
“It seemed to my father that everything he stood for was being repudiated,” Epstein said. “He almost sat shiva (went into mourning) for his alma matter.”
Epstein went to Columbia and Harvard Universities in the 1960s as the New Left was being born. But he gravitated to professors who taught a healthy skepticism of all-encompassing philosophies, from existentialism to Marxism.
Yet he concluded that Marx did get one thing right: “Material wealth,” Epstein likes to say, “is the driving power of politics.”
To Marx, that meant the state should abolish private property for the common good. To Epstein, it means everything possible should be done to maintain and increase private property.
At first, Epstein defended his position on libertarian grounds, arguing that, by a kind of inalienable right, people are entitled to have the government off their backs and away from their property as much as possible.
Now he backs his property-is-sacrosanct philosophy with a utilitarian argument: Compare the waste and inefficiency of government programs with private enterprise at its unencumbered best, and you have to conclude that entrepreneurs are much more likely than bureaucrats to produce the economic prosperity upon which everyone’s well-being depends.
Bureaucrats vs. entrepreneurs
Accordingly, the first rule of Epstein’s legal philosophy is that the courts and Congress should interfere as little as possible with property rights. He argues that any politician proposing a new program bears the burden of demonstrating that the social gain it will produce would outweigh the inevitable loss to those whose freedom would be circumscribed to finance the project. Against that test, Epstein thinks, virtually every government program from the New Deal to Clinton’s economic recovery program would flunk, a proposition unlikely to win him many friends or even to influnce many people, at least for now. “Anybody who kicks sacred cows is going to be unpopular,” notes U.S. Appeals Judge Richard Posner, a U. of C. colleague. “But political opinion in the U.S. is volatile. Who knows, perhaps 10 years from now, some of Epstein’s ideas currently considered unacceptable may have become mainstream.”
Epstein said he’ll be content just to have taught his fellow professors a little humility, especially those who shuttle between seminar rooms and policy-making positions in Washington.
“We academics often fail to see the difference between the universe of ideas we live in and the real world,” Epstein said. “Ordinary people are better equipped to know what their problems are than professors who think they have some special management skills enabling them to jump into any situation and take charge.”
TOUGH CALLS ARE EASY FOR EPSTEIN
The world according to Richard Epstein:
Gays in the military: “Gays’ income is higher than white males’. So it’s hard to conceive of them as economically disadvantaged by employment discrimination. Thus you can’t argue that the response of the military is a function of systemic social discrimination. Normally I’m reluctant to second-guess anybody’s professional judgment, including the generals on military affairs. But in this case, I can’t say I’ve been persuaded by their arguments about the necessity of the ban. I’d like to see some experiments to resolve the uncertainty, but I doubt that any such experiment could be conducted effectively in the current political climate.”
Women in combat: “This is a proposal kept alive through political pressure. It’s not been imitated abroad, nor supported by the field performance of women. My instinct is that the Army would sharply scale back the number of women and the positions they could fill if allowed to do so.”
Crime and punishment: “We lurch from the extremes of unwarranted forgiveness by society, making excuses for the downtrodden, to excessive severity for a few offenses, for example, in drug cases and white-collar crime. The former undermines the protection of the innocent, and creates an undeserved subsidy of the guilty paid by the innocent.”
Gun control: “While its objectives are laudable, it will fall of its own administrative weight. Once you defuse enforcement of the laws against criminals, self-help becomes a thinkable alternative of last resort.”
Civil rights legislation: “Statistics show that the condition of black Americans-family stability, rate of poverty, crime, etc.-has declined since the first Civil Rights Bill of 1964. So it’s hard to think it’s helping.”
Hillary Rodham Clinton’s health-care program: “What is this `managed competition’? You don’t create competition by forcing people to compete. If it ever gets off the ground, her health-care program will take every failure of the 20 years of Medicaid and Medicare and consolidate them into one colossal disaster.”