NYU Law Prof. Richard Epstein on the Founders’ Constitution & Federalism

Please excuse typos.

[00:00:00] Cara: Listeners welcome to another week of the learning curve. I am so happy to be back after [00:01:00] a two week hiatus. And I know that you had the pleasure of listening to like co-host pinch hitter, Kerry McDonald with Gerard. It’s a super team. Gerard. I missed you very much. Now I sent you some video while I was away.

[00:01:18] On vacation with

[00:01:19] Cara: my family, right? Because , strangely enough listeners here, I was, we were very lucky to travel to a beach town in Portugal, in Southern Portugal. And wouldn’t, you know, it having dinner with my family a band next door starts playing John Denver, take me home. And all I could think was Gerard Robinson.

[00:01:41] And now my five year old won’t stop singing at Gerard. So, so what did you think, what did you think of that video? Was it a good cover? Were you satisfied?

[00:01:49] GR: It. Yeah, it was a good cover. It was good to hear your daughter’s voice. It was good to hear your daughter’s voice in another country. And so the fact that John Denver’s words and songs [00:02:00] live on over the other side of the Atlantic and to show the power of West Virginia, some of you uh, regular listeners know my father’s from Charleston, West Virginia, as he would tell people he was from the big city.

[00:02:11] And then we moved to Los Angeles and said, dad, the big city thing for Charleston probably won’t fly in Los Angeles, but I get your point. But no, I was so glad you shared it with me. And it looks like a such a beautiful place.

[00:02:21] it’s a beautiful place to listen.

[00:02:23] Cara: Yeah, but then you also know jar that everywhere I go, no matter where I am, I’ve got the learning curve in you on my mind and in my heart.

[00:02:30] So there, there you have it. And yeah, no, it was, it was really exciting time. Feel lucky to have been able to do that and spend some time with my family. So thank you for letting me take a couple weeks off. Now you, of course, while I was gallivanting, you were hard at work. Tell what have you been up to these past couple weeks?

[00:02:47] GR: Another song that I don’t know if I’ve had a chance to sing this song, but the one by Willie Nelson on the road again so I was on the road again, and I was on the road in your neck of the [00:03:00] woods, Boston. I had an opportunity to meet with more than 30 people across the country from advocacy groups, to funders, to professors, to.

[00:03:09] Entrepreneurs it was pulled together under the banner of stands stronger together, and it was just an opportunity for some of, of us to exhale, to think, to learn, to laugh, to network and to recalibrate on the work that we do for families, for children and for the institutions that we actually run. And so it was just great.

[00:03:28] In fact Carrie was there my co-host for the last two weeks. And in fact, it’s the first time we’ve ever met in person, even though we’ve been on shows together. So it was good to see her, but it was just a good place to just, you know, see not only older friends, but to meet new entrepreneurs and leaders in the movement.

[00:03:43] And it was a good reminder. So the one thing I will say is of all places in the world, I had a chance to work on my tan while I was in Boston, because it was 98 degrees humid. And I forgot my belt in Virginia and had to walk nearly 30 minutes with a sweatsuit on to get a new [00:04:00] belt. Now, listeners.

[00:04:03] Cara: Yeah, some might culture are a lightweight for saying that, but I have to attest.

[00:04:07] So although, and I’m very sad. I could not be at said convening, cuz obviously I was doing something else, but I was not sad to have missed , the legendary heat in Boston. So Gerard is not being a lightweight here. It was pretty bad. In fact, you might have lost weight walking around just to get a belt.

[00:04:25] So I’m very sorry to hear that. My friend our city is usually a little bit more hospitable in the summertime and that city gets it traps the heat when you’re walking around. So it’s 10 times worse than if you were say on Cape Cod where it’s probably where you should have been, you, you should have made a note real quick jar before I wanna ask you to tell us about your story of the week, but I’m really curious to know, like you said that that this convening, you know, reminded you of, of why we do the work.

[00:04:52] Can you give our listeners? Is there like a one sentence. Take away something that you’re gonna keep in your brain, as you walked away from this [00:05:00] like reinvigorating experience,

[00:05:02] GR: we’ve put parent back back in the conversation of parental choice movement. And that has a lot to do with not only Virginia, not only elections across the country, but also the pandemic and parents taking charge themselves, not waiting for academics, advocates, or philanthropists to do so they took charge and we followed behind them.

[00:05:25] So that’s my biggest takeaway. Glad to see parents move from the object of the conversation to the

[00:05:30] Cara: subject. Yeah, I amen. I love, I love that. All right. What’s on your mind in terms of in education news

[00:05:39] GR: this week in education news. Mine starts off with a story from Utah. And it’s about the number of women in the workforce and the number of women who are actually superintendents.

[00:05:52] And so Marjorie Cortez her title will tell you everything about the article. 72% of us public [00:06:00] educator workforce is female, but just 13%. Of superintendents are women and she goes into why. So she starts off with a story about Taran K, who is a 30 year educator who finally became a superintendent of the grand county school district in Utah.

[00:06:16] And she had tried two times before, both times a man won the position. And she finally got the position in part, because it was an appointment to get it because of, of a few changes. She’s glad to be in the position. And she says, I’m actually interested to be here. But when you think about the fact that we have so many women in Utah who are in education, but right now only 14% of the states, 41 public districts are led by women.

[00:06:43] We need to do more things to bring in women. And so she talked about not only the importance of mentorship but also making sure that we encourage women to do this work early. And so that’s what she said. But, you know what there’s also educators who are agreeing with everything she had to [00:07:00] say, there’s actually a new report published by the Utah state university, Utah women and leadership project that shows actually some upward trends in a number of women who are in leadership positions.

[00:07:12] You and I, both supporters of options across the board. Many of us know that superintendents often move or come from central office or the principalship. And so one of the things report identified is that in Utah, some of the highest percentage of women in K12 leadership are actually found in charter schools in which over 60% of female principals and among Utah’s elementary school assistant principals of which 71% are women.

[00:07:39] And so that has been a traditional pipeline to the superintendent. So Utah is just an example of a larger story. And so in reading this, I said, well, if that’s going on with Utah, I wonder what’s taking place nationally. So when I took a look at data from the school superintendents association April 23rd, 2021 they produced [00:08:00] their 20, 20 decennial study.

[00:08:02] And they took a look at the profession from 2010 to 2020. And I wanna give our listeners just a quick snap. Of what the American superintendent looks like. So the average superintendent was married a married white male, 91.3% who had previous experience as a principal with two to eight years of experience being a superintendent the number of women actually roles.

[00:08:26] So when I mentioned the 13%, that was from a 2000 19 study. This one looked at women as well. Now, the percentage of women at 26%. Is higher than the. 5.4% of women in leadership positions in standard and poor 500 companies or Russell 3000 companies, approximately 59% of the respondents plan to stay in the superintendent for the next five years.

[00:08:54] And when you take a look at the ratio and ethnic diversity, only 34% of respondents worked in [00:09:00] districts with less than 5% of students who were non-white. So these, some of these things may not shock our listeners. They know some of these things for those who are listening and learn this for the first time, you think, wow, well, what can we do to make a change?

[00:09:14] Well, there is a gentleman named Thomas Glass who published an article with the same school superintendent dis association. He identified that of our nation’s 13,728 superintendents. Again, only 13% are women he’s following up on the earlier report that I mentioned, he said there is an increase because in the 1990s, only 6.6% of women were superintendents.

[00:09:39] So he provided a number of answers as to why women aren’t poised for the position. I’ll just share three number one. He said, women are not in positions that normally lead to the superintendent. He said, for example, approximately 75% of elementary classroom teachers are women. However, nearly 75% of superintendents did not [00:10:00] teach at the elementary level prior to working as a central office.

[00:10:04] Leader or superintendent. So there’s already a pipeline piece between those working in elementary, where the majority of our students and teachers are, and those at the high school level, those leadership positions tend to be heavily male. Number two, he said, women are not gaining superintendents credentials in preparation programs.

[00:10:23] Now nationwide women constitute more than 50% of the graduate students enrolled in education administration programs. Women also are achieving doctorates at a comparable rate to men. However, only about 10% of women in doctoral programs are opting to earn a credential, become a superintendent. So that’s a factor.

[00:10:43] And then last women are not as experienced as men as relates to school. District-wide fiscal management. Those positions are heavily male than female out close by saying that in the late 1990s, I had an opportunity to work for a female superintendent. Her name was [00:11:00] Dr. Arlene Ackerman. She was superintendent of the schools in Washington, DC.

[00:11:04] I worked as her legislative liaison to represent DC public schools before the city council. And at times before Congress she made sure that she pointed a number of women to not only assistant superintendent positions for clusters of schools, but also leadership positions with their title within DCP.

[00:11:24] It gave me a chance to see how men in Congress, city council, DC school board, really in positions of power in DC, how the author responds to women versus men. Uh, So it was an interesting lesson for Gerard Robinson. And I wanna dedicate my presentation today to her memory.

[00:11:41] She was a good mentor and considered me one of her sons. Now

[00:11:44] Cara: Gerard, what is a key defining factor that you noticed in the ways that men were treated differently than women?

[00:11:52] GR: They , interrupted her more often than they did? Oh,

[00:11:56] Cara: maybe they explained a little

[00:11:58] GR: bit number two. [00:12:00] They often asked her more questions about programmatic operations rather than finances.

[00:12:06] And when they did ask questions about finances, it wasn’t about per se school system, how it’s run. It was minute things that had more to do with what someone had read the newspaper about something with special ed and some challenges we had versus saying, well, let’s actually walk through, your almost half a billion dollar budget to do X, Y, and Z.

[00:12:25] I had a chance to also see other superintendents testify before Congress and also for different reasons, former superintendents to come testify. And it was just, let’s just say to watch.

[00:12:36] Cara: Well, you are, I don’t have to tell our listeners you’re a pretty enlightened guy. So, I appreciate that you can notice and articulate those differences because I think that any woman who’s held any sort of leadership position or been in that situation can probably relate exactly to the things that you’re pinpointing here.

[00:12:55] what’s so interesting to me about this story is that we’re constantly talking about how the profession of teaching is [00:13:00] so female, I mean, to be honest with you, I think like, even at my own kids’ school, which does a pretty good job of hiring, diverse teaching candidates. And I mean that in every sense of the word when we get yet another male teacher, everybody cheering on the sidelines because you know, sometimes.

[00:13:17] Little boys like to see themselves in their teachers as well. But what’s interesting in this, heavily female profession is that the top leadership posts in district are so heavily male. One of the things that I’ve always thought, and maybe this is a bias, an observation that doesn’t really have any data behind it.

[00:13:34] I don’t know. It’s always struck me that so many men seem to go into teaching because they plan to become a principal or they plan to become a superintendent. And being a teacher is just one stop on that path or one stop on that road. Whereas many more women I know who have been in the profession for years and years and years, aren’t necessarily interested in the leadership position, but this is I thank you for bringing this to our [00:14:00] attention because there might be a lot of other reasons why women, for whatever reason, think they are not interested in the top position.

[00:14:07] And that might lead to, if we dig a little bit deeper there, we might learn that it, has less to do with being uninterested and more to do with receiving implicit messages that they’re not qualified or that it is a male job as it, sounds like it was tradit Ben, but we’ve got a lot of cool people breaking barriers, your mentor, right.

[00:14:23] Even. I will say, you know, Boston public schools has an outgoing female superintendent and no, I do not believe she is responsible for all of the problems that that system has. and we have an incoming female superintendent. So I think that increasingly you’re gonna see more of the larger school systems in the country being led by women, which is probably going to trickle down to some of the smaller systems as well.

[00:14:46] So thank you for that story. It, it makes me think a little bit about the article that I was thinking about today and in this sense, so those things that sort of get left out in school. So for [00:15:00] example, if you’re talking about women, not feeling like, or not getting asked a lot of questions or expressing less comfort with financial, non operational budget, but financial matters related to schools.

[00:15:11] I that’s not something that’s often taught in an undergraduate school of education. And I know, I certainly didn’t learn about it until I was even in a doctoral program and just teaching basic elements of it to graduate students. when I was teaching at the university level school finance was something that people didn’t think about.

[00:15:28] In fact, our friend, Marguerite Rosa is now teaching, giving a certificate in school finance too, mainly to people who have, already had a lot of education

[00:15:37] in the

[00:15:37] Cara: field of education. So it’s around those things that don’t get taught. And my story is around, call it a skill, some might call it a mindset, but it’s around.

[00:15:47] One of those things that might be. Approached in some school settings, but usually isn’t explicitly taught and that is entrepreneurship. Now I chose this story in part jar, because [00:16:00] sometimes we’re thinking about stories that we’re gonna talk about. And I didn’t know exactly how I felt about this, because I’m gonna be honest with you.

[00:16:06] A lot of times I hear the word entrepreneur or entrepreneurship, or I meet someone as I did last week. Who, when I say like, what do you do for a living person says, well, I’m an entrepreneur. And I, I don’t know what that means. Does that just mean that you’re a small business owner? Does that mean that you’re a serial, like, startup person?

[00:16:25] What exactly does that mean? So I was thinking about it and you know, if you look up like what’s an entrepreneur, when we know that it can be a founder, somebody who’s starting businesses, it can be, but it’s also in many ways. A mindset. It’s like characteristic. So if you look into the research on this, if you look at just basic, like, what makes an entrepreneur, , we talk about things like somebody who is very dedicated.

[00:16:51] Somebody who’s created somebody who has a creative, somebody who has a passion for something, somebody who is motivated to accomplish certain things. And that might be,[00:17:00] starting something new or opening a business. And as I got to thinking about that, I started to think these are absolutely qualities that we should be cultivating in school.

[00:17:10] And they are absolutely qualities that some kids. Qualities mindsets, characteristics, whatever, even skills. Yes, absolutely. Skills are included in that too. Something like financial literacy, another thing we don’t teach in school that might be part of this. Right. But these are things that some kids will have easier access to depending on how they grew up, depending on where they grew up, depending on who their parents were, the circumstances they were born into.

[00:17:34] And so this article is actually it’s out of Forbes, but it’s about , the UK and the title. This is written by Philip Salter and the title is UK’s top entrepreneurs call on government to prioritize entrepreneurship education. So again, what the heck is entrepreneurship education? Well, it’s about cultivating.

[00:17:54] Qualities mindsets and at a basic level to more basic level teaching [00:18:00] kids, what it actually is like, what does it mean to be an entrepreneur? What does it mean to start your own organization? Start your own business. Be a leader of. Something. And , one of the things I like about this is they’re talking about it, not as a one off course, right.

[00:18:18] We so often in schools think like, oh, you need a course on financial literacy. So let’s just instead of embedding that and making it part of a data curriculum or math curriculum, we’re just gonna, like, it’s gonna be this one elective that you have to sit through and we’re not gonna really think it’s that important, but we’ll do it.

[00:18:33] And we’ll, we’ll tick the box. And we say, we did, we do that. Unfortunately, my friend with character education, something near and dear to your house all the time, we’re say, okay, we’re gonna talk about values today. And we tack it onto the curriculum. But importantly, in this call to action, it’s a report.

[00:18:49] And it’s calling for the government to draft an actual strategy that takes into account evidence from across Europe about like how you cultivate young [00:19:00] entrepreneurs. And then it says, We should be really clear on what are the key competencies and skills that kids need to develop over the course of their education and as well as, , providing them with opportunities to exercise those skills.

[00:19:13] So project based, learning, not just theoretical content, not just get and give. And I’m a little bit more convinced that this has a place, especially as they’re thinking about, they’re saying, and this should be something that’s integrated throughout what kids do. Right. So if you think about like really cool school opportunities that maybe your daughters have had, I know to some extent I’ll give an example, my own kids when they become third graders.

[00:19:39] They have to run something called the third year cafe, where they start by planning a menu. They go to a local restaurant and get a cooking lesson. They have to go to the grocery store and purchase all the food. They have to decide, who’s gonna run the kitchen. Who’s gonna run the front of the house.

[00:19:53] Who’s and it’s like a really cool, , for the first time I did it, I thought, oh, this is just about my kids finally [00:20:00] making me a meal after all these years. And really it’s about teaching kids. how to take charge of something, how to run something, how to lead something, all of these qualities associated with entrepreneurship.

[00:20:13] And I think. One of the things I really like about this idea, Gerard, is that this could be a really great hook to engage some kids who might not otherwise be engaged in this kind of content. And in fact, who might not otherwise be engaged in other content and giving us a new way of thinking about like how we get kids excited about various things.

[00:20:35] So you could imagine, thinking about maybe it’s a math course, how do you teach kids to get entrepreneurial around like, data or math or all of these new things that are probably because we’re so Gerard so far away from our own educational experience, but that was my story. I would highly recommend it.

[00:20:53] I can’t wait to see more like this from Forbes and from others really digging into what we mean by [00:21:00] entrepreneurship education. But, as of right now, I am for

[00:21:03] GR: it. And I am for it as well. And the question you raised earlier, well, what is it exactly? And your example was wonderful or examples, is it business owner?

[00:21:16] Is it running company? for me, I’ve always said entrepreneurship is a mindset entrepreneurs, see a problem and call it an opportunity. Bureaucrats, see an opportunity and call it a headache because it requires change. And so when I think about entrepreneurship, I’m excited, the UK is doing it. And I’m also excited that we in the us have worked in this even if not, totally baked into take uh, K-12 education.

[00:21:44] You know, we have a couple of organizations that have been around doing some work. So as you were talking, I was thinking about the network for teaching entrepreneurship which was founded in New York in 1987. they work with middle and high school students to teach them about entrepreneurship, [00:22:00] but the same for college students and adults more to home in terms of the network I was with a few days ago, you have young entrepreneurs, which was founded in 1991.

[00:22:10] They’re part of the stand together network. I’ve had their leaders, some of their students participate in some of my events and they do the same thing, but they actually create an academy. And it’s a hub for entrepreneurial education. That’s important to say entrepreneurial education versus simply entrepreneurship because it’s an ongoing process.

[00:22:30] So these are two that come to mind. I also remember my time back was a 2004, 2000. Six, when I was working for Dr. Howard fuller as a fellow at the Institute for the transformation of learning. And one of the charter schools in the city was created in a partnership with the urban league. Yeah. Uh, The urban league is an organization.

[00:22:52] I often refer to it as a right, the whole push for economic empowerment. And they created a [00:23:00] school where they were teaching entrepreneurship in the school and had a chance to visit and see some of the great things that were doing so great story I’m with it, but definitely want our listeners to know that entrepreneurship is as much of mindset as it is a program of practice.

[00:23:14] Cara: Absolutely. I’m running after that mindset myself drawn. I’m gonna figure that out. But before I do that, we need to bring in our fabulous guest in just a minute folks, we are gonna be speaking with professor Richard Epstein. He is the Lawrence, a Tish professor of law at New York university school of law and author of the classical liberal constitution.

[00:23:37] The uncertain quest for limited government coming up in just a minute.[00:24:00] [00:25:00] [00:26:00]

[00:26:06] Learning curve listeners, please. Welcome to the show. Richard Epstein. He is the inaugural Lawrence Tisch professor of law at the new. University school of law, the Peter and Kirsten Bedford senior fellow at the Hoover institution, the James Parker Hall, distinguished service professor of law emeritus and senior lecturer at my Alma mater the university of Chicago.

[00:26:28] He is the author of many books, including takings, private property and power of eminent domain, 1985 simple rules for a complex world designed for Liberty, private property, public administration, and the rule of. The classical liberal constitution, the uncertain quest for limited government and the dubious morality of modern administrative law, quite a body of work.

[00:26:54] Professor Epstein is a member of the American academy of arts and sciences since 1985. A winner [00:27:00] of the Bradley prize, the recipient of honorary degrees from the university of gen and the university of Sein. And he graduated with a BA Summa cum laude from Columbia university, received a BA with first class honors in jurisprudence from Orle college, Oxford university, and earned his law degree cum laude from Yale law school, professor Epstein.

[00:27:21] Welcome to the show.

[00:27:23] Richard: Well, with all that introduction, glad to.

[00:27:26] Cara: Yeah, it’s a fantastic bio. And, you know, our listeners actually really like hearing all these accomplishments, they really enjoy getting a picture of what people have done. So, okay. I have read a number of, titles here. So you have absolutely articulated a comprehensive defense of classical liberal constitutional.

[00:27:45] Now, can you please tell our listeners what that means? and could you also share what you think just like the overarching features , of American constitutional as our [00:28:00] founding fathers understood it and what should, folks know? What should my kids know about.

[00:28:05] Richard: Well, great. I mean, there’s always a little bit of a historical anomaly here.

[00:28:09] I think the term classical liberals was never used by classical liberals , to define themselves. The term sort of came in later on by other people. And the key elements of trying to figure out why it is that these people are classical liberals and not sharp libertarians, which is a. Point to point view that really matters.

[00:28:26] And I think there are a couple of explanations for that. Libertarianism is a very bad theory. If you wanted to get a comprehensive theory of the state, even though it’s a very nice theory for dealing with two party relationships and contract law of leases and sales or various kinds of personal injuries.

[00:28:42] Well, what’s the defect, a libertarian worries about force and fraud. He doesn’t worry about monopoly and he doesn’t worry about taxation. Well, the moment you ignore those two things, it turns out you can’t have rate regulation. You can’t have an antitrust law, you can’t have a system of taxation. And so you can’t [00:29:00] figure out how it is.

[00:29:00] You’re gonna put a government together one way or the other. And so the classical liberal justice is to say, look, in addition to all these rules, Personal autonomy, freedom of contract protection against bodily aggression, the acquisition and ownership of private property. You have to have rules that govern what we call forced exchanges.

[00:29:19] And these are situations where, for the benefit of the person who’s being coerced, you tell them, you have to accept this, that we’re gonna take something from you in exchange. Now, normally that sounds like a terrible situation, but if you have a large number of people, it leads to a very nice solution.

[00:29:35] You need taxes to fund order in the government. You have to put them on everybody. The theory of government is, and you take the Liberty that you lose and the taxes that you pay and you get back in return, a greater security for the property that you retain so that you and everybody else in society is better off than you would’ve been otherwise.

[00:29:55] So it’s an explicitly consequentialist theory saying in effect, we know what [00:30:00] individual rights are. We just talked about them in the lock in sense. And then what we do is we figure out how to protect them by putting these institutions on. Well, the second question, the classical liberal ask is, well, how do you make sure that these institutions behave?

[00:30:14] And this is something having to do with the art of governance. It’s not something that could automatically be stated. And we all live in the shadow of Thomas Hobbs, who in his own book Lobi and said, the only way we can do this is to objectively throw ourself at the feet of the sovereign, who could do whatever he wants to us.

[00:30:29] And our only remedy is to kill ourselves that we don’t like what he does. And the theory of block is to say, no, we can put together two sets of safeguards that will in fact, mean that we can improve the odds of estate working well. And the first of these sets of state guards are those for individual rights.

[00:30:46] And so in our federal constitution and in state constitutions, we have protection against the taking a private property. They’re not absolute. It turns out that you can take private property for a public use so long as you pay just [00:31:00] compensation. And my takings book from 1985 is a 350 page exposition of what that means.

[00:31:06] Can’t go into all of it here. And then there are other protections, like protection of freedom of speech and the free exercise of religion and so forth and procedural protections. And the theory is these are pretty much kind of universal things. And then what you have to do is to figure out what kind of government you put in place in order to protect them the size and complexity of government is heavily dependent upon the, the topology that you own.

[00:31:29] You could have states in the United States. You could even have states in Switzerland, not gonna work so much in Israel. Works in Canada, works in Australia. If you don’t have states, then you have to have some way of making sure that the central government doesn’t run over everybody. And if you can have states, what you do is you divide authority in the federal a system.

[00:31:48] So the central government gets some kinds of activities. Each of the states get other kinds of activities that are reversed for itself. Now this then gives rise to lots of interesting question. The first one is at the federal [00:32:00] level, how do you organize government? And in the lock in tradition, where you’re very worried about excessive powers, we develop a system of checks and balances, separate branches of government and the like, so it’s to make sure that all the keys of the kingdom.

[00:32:13] Are not in the hands of any individual person, how you divide that varies from country to country and constitution to constitution. But the notion of that kind of division and check is essential. And if you look at the American constitution, it does a reasonably good God in the beginning of trying to figure out what that is.

[00:32:30] And the second element about federalism is how the federal government relates to the given state governments. What authority is given to which government at what level, for what issue, this turns out to be a very, very complicated question. Just to give you one very simple situation. The commerce clause says the government could regulate commerce amongst the several states with the Indian tribes and with foreign nations.

[00:32:53] Well, how far does that go? Does anything that affects commerce like manufactured covered, or is it only the actual transmission of [00:33:00] goods and services and people across state lines and the original. A federalism was the smaller one and saying, you leave everything else to the states and they could act in competition with one another, but you don’t wanna have a federal government.

[00:33:12] That’s huge. And then even if you have a small gate government, there’s always what we call the question of preemption. Can the federal government in areas of common concern and overlap Trump, what the states do. And there’s a body of law, extremely complicated that tries to deal with all of those issues.

[00:33:28] So the classical liberal system says, look, we know that there’s a serious danger of the government abuse, and we believe in belts and suspend the belt are all the protection of the individual liberties. And the suspenders are the structural protections that you get out of a federal system. And the classical liberal constitution is a fairly long book.

[00:33:49] Which tries with respect to most of this issue. I don’t cover the criminal law in that book to figure out how this system ought to be put together and how close the founding fathers got to it. Were they [00:34:00] perfect? No answer why slavery, one word changed huge amounts, but if you can put that aside and then try to figure out what the rest of the structure was, slavery becomes an ugly part of a very difficult political compromise, but the rest of the structure is remarkably classical liberal in its conception and organization in the sense that I’ve defined it.

[00:34:20] Wow.

[00:34:21] Cara: I, I, what messes it up? One word slavery. That’s pretty, , that’s pretty powerful. So this is a, great definition, I think for those of us who haven’t thought about this in a long time of, not only constitutional classic liberal constitutional, but also federalism and why we’re set up the way we are.

[00:34:38] Can you talk just a little bit more professor about what we should know about the impact especially of this. 17th and 18th century English ideas and, where we got to in this country. talk more specifically about its impact, not just on law, but also on education, which, you know, our education system is set up differently than you would see in a lot of other [00:35:00] countries.

[00:35:00] I’m, I’m curious as to how you parse that impact.

[00:35:02] Richard: Okay, well, let’s just first start with the legal stuff. There’s a dirty trick, which all the European thinkers and you’ve mentioned amongst others, Edwards or Edward Cook and John law. They were all trying to figure out how individuals form the state, but the American constitution was an experiment in the way in which states form a national government.

[00:35:21] And so you could carry some of the insights over from the earlier stuff, but all that federalism element that I talked about before you’re flying blind, when you start to do this. So now what did they carry over from those people? Well, one of the things that Coke was famous for was the notion that. You have to make sure that the king and his course do not act out of bias.

[00:35:41] And the natural law tradition in England gets carried over into the United States. And only it now becomes due process protections against the ation of government, the property. And you’re trying to figure out what John Locke. Well, he was the defender of private property and of limited government.

[00:35:57] And what he tried to do is to explain how [00:36:00] property was acquired and why it was so important. And if you look in both the federal and the state constitutions, you see all of them have some kind of explicit protection of property. Locke never quite figured out how it worked. He kept on thinking in terms of losing property through consent.

[00:36:15] We think a it in terms of just compensation, but there’s no doubt that that was a big issue. And the third of the major persons is somebody like Montesquieu. And he too did not work in a federal assistant, but he was the one who articulated the principles of separation of power. So all of these people have an influence on what’s going on but given the unique context of the American experience they can’t.

[00:36:38] In the exact way now, how does American education different from other places? I think the simplest explanation is the United States is a much more open country in which the claims of feudalism and past title have much weaker claim. So we have land grant universities from the very beginning and we have all sorts of private educations in schools.

[00:36:57] We don’t have a futile structure in any [00:37:00] way, shape or form. Even our patent system is much more open than it is with respect to what’s going on in England. Our good friend, Thomas Jefferson thought these should be easy to obtain and everybody should be able to obtain them the English system. You had to go through a thick it before you could get a patent.

[00:37:16] And there’s no doubt that the American system has on. Function better than the English system. So we also had a system, not so much of public education that would be wrong. Not only came in the 1860s and seventies, but we had a system of pretty much universal education and it was done in a decentralized fashion.

[00:37:34] There weren’t even many public schools, but families understood what was important. And so there was a lot of self-organization to try to deal with these things. And that’s also quite consistent with the classical liberal position, because what happens is says, everything doesn’t have to be done by government and education is one of those things that government doesn’t have to do.

[00:37:52] And indeed, if it does done it, you’re running the risk of indoctrination, unless you carefully insulate the institutions of [00:38:00] academic learning from political influence.

[00:38:02] GR: So sticking with the education theme I’m in Virginia carers in Massachusetts, we’ve got a few colleagues who are in New Hampshire, early state constitutions dedicated wide authority to local governments and citizens, including of course, education.

[00:38:17] You’re starting to go down the line, which I’m really interested, learning more about in terms of federalism and American constitutional and how it relates to education. Talk to us about the early.

[00:38:29] Richard: Well, I mean, I think there’s the first thing is if you go back to the original buzzwords of Madison and others the federal government was one of enumerated powers and the state powers were wide and diffuse.

[00:38:41] So that, unless you could point to a particular element that was covered, you couldn’t do it at the federal level. The biggest dispute at that particular time was whether or not, if you looked at the various causes on commerce and the like, could you find authorization for a federal bank? The correct textual answer is no that held for a while.

[00:38:59] [00:39:00] And then around 18, 12, everybody kind of changed their mind and they did it on education. They never did change their mind early on. There was no such thing as a federal university that was created. All of this was done the state level. There no federal public schools, no federal standing or any of the rest of this stuff.

[00:39:17] And in fact, education only became part. President or the federal power after the 1937 revolution in which limited, constitutional was replaced by a progressive vision that went much broader. It took the end of the second world war to transform this stuff because. 1937 is the great constitutional revolution.

[00:39:37] The war comes along between 1939 and 1941. And you have to do it afterwards. So by the time you get to Eisenhower, then you have a department of health, education, and welfare, right? So all of a sudden what happens is you’re starting to move into that particular domain. Well, how do you move into that domain is of course, very tricky there’s instructional devices and coercive devices, [00:40:00] but what ultimately transformed American universities on education was the adoption of title IX in 1972.

[00:40:08] And what this did is says, look, the federal government gives all sorts of DOE out to all sorts of private and public institution. And therefore it could attach conditions to these institutions on the way in which the money is going to be spent. And it wasn’t just the way in which you spend the money on a particular task.

[00:40:24] It’s a much more comprehensive overview. So you could regulate everything having to do with college athletics because you give a grant to the medical center. It’s things like that. And that’s where the beginning of the decline starts to take place. Now, what you have to do is depend upon virtuous federal agents to get things right.

[00:40:41] And it turns out these are always in short. And so the constant conditions and the battles over title IX at both levels have really changed things. Then in effect, the civil rights act starts doing the race discrimination and sex discrimination and stuff. And what happens is you start to get more and more of a federal takeover [00:41:00] tied to the gift of monies in some cases, and in some cases not.

[00:41:03] So I think in effect you can, in many ways trace the decline of education in the United States to the federal takeover. It’s not the only cause about the same time that this takeover is being perfected. Kennedy in 1962 starts to talk about how it is that we’re going to allow as Roosevelt never did to have a situation in which you would have unions of federal employees.

[00:41:25] He thought it was limited, turned out not to be, and then immediate. Teachers and other state employees got their unions from their state government. And the moment these things become unionized, they become incredibly rigid. The budget cease to be out of your control. The union has real power on the election and non-election of particular parties.

[00:41:43] And so between the federal override and the union takeover what’s happened is our systems are, and I think serious states of disrepair. And one of the things of course, that’s gonna be fairly big in this current election is whether or not you’re gonna see us shift back. It’s catalyzed, [00:42:00] not so much by the abstract structural issues, but by the rise of critical race theory, which has enormous influence in academic and in high places.

[00:42:08] But it’s met with a lot of hostility on the ground by parents who want their children to get a more traditional.

[00:42:14] GR: Slavery is a word that you mentioned during your conversation with Cara mm-hmm and the residue of slavery is pretty wide and deep. So when we think about segregation, it’s not only education, but also housing and parks.

[00:42:25] We think of Jim Crow, it’s just not the criminal justice system. It’s also, who’s gonna be the principal of a particular school, or who’s gonna run a business. When we think of federalism, there was a point in American history. We think about state’s rights and the movement that took place.

[00:42:39] Following brownie board of education, particularly in my home state of Virginia, we had a Southern manifesto that was signed by more than a hundred members of Congress, as well as Virginia leadership, taking a big role in that. Yeah. And so when people hear federal. Many things come up. Can you talk to us about the balance between federal state?

[00:42:56] Sure. And

[00:42:57] Richard: local, I mean, Virginia was after all leader in that [00:43:00] movement amongst others, there was a state law decision called name V name in which they sort of reaffirm segregation as a matter of first principle. And I think what’s happened is this is a case of a promise gone awry at the end of the civil war, the radical Republicans essentially sought to create a system in which the federal government would have general oversight over states to make sure that slavery and the vestiges of slavery would be removed.

[00:43:25] And one of the most important provisions of the constitution was the 14th amendment. And the first part of it says quite bluntly that anybody who was born and naturalized in the United States is a citizen of the state in which he resides and of the United States. And what that meant was to overturn Dr.

[00:43:41] Scott and to say, Far from being a situation where you could deny a citizenship to somebody who’s black solely because of his race, even if he was born free now in effect, everybody’s an equal citizen. Well, what’s the payoff of being a citizen? Well, it’s article one having to do with the privileges and immunities cause, [00:44:00] and that starts to say no state shall make or enforce any law.

[00:44:03] That it bridges the privileges or immunities of the citizens of the several states. Now that seems to me to be pretty broad in terms of what it covers, but in a case called slaughter house in about 1872, everything was upended and that clause was read exceedingly narrow. So it gave you the right to petition the federal government on the one hand in S boat on an interstate river, but it didn’t do anything to make sure that the states would not become segregated.

[00:44:28] And then there was another case called crook shank decided around 1876. And what that case held was that the federal government was powerless to intervene under the privileges and immunities caused when in the Colfax massacre a party which wanted to take control in Louisiana. Indiscriminately killed black people.

[00:44:45] And what happened is you could not bring an action in the state courts for obvious reasons. We know who won that battle and you couldn’t bring ’em in the federal court. So that set the stage for segregation coming in and it came with a vengeance probably starting around the early [00:45:00] 1890s. And what happened is the most important to those cases was a case called Plessy V Ferguson which held essentially that separate but equal was perfectly viable.

[00:45:08] And what they mean by that was you could have segregated schools, segregated chains, and you could ban essentially into marriage between blacks and white. It was a trifecta. And the argument was defended ironically, ambitiously on the grounds that this preserved said, justice, ho brown, freedom of association for people.

[00:45:26] When in fact what it did is it did it in exactly the other way. Well, it took a very long time for the federal government to sort of dig itself out of that hold 1915, you see the first glim rings. When it turns out the grandfather clause, which said you could only vote if your grandfather voted, which meant that no black person who was freed after 1865 could vote because his ancestors couldn’t vote.

[00:45:48] That was overturned. And then you start getting some stuff with zoning, a power against Alabama first criminal case in which the federal court intervened to prevent a real railroad jobs. And you get [00:46:00] a bunch of other things having to do with the white primaries until you slowly get up to brown V board of education, brown V board of education stated a principal, which was.

[00:46:10] Hard to square with the original text of the constitution, the equal protection cause probably had nothing to do with education, but the privileges and immunities cause had been shut down. And so Earl Warren wrote at a very high level of generosity and he said, look uh, Segregation has no place under the United States constitution.

[00:46:28] The intellectual rationales were somewhat weak and everybody knew it, which is why it got all the Southern resistance that you just mentioned coming out of Virginia with the manifestos and so forth because they were vulnerable. And then trying to put it together became even harder. They was a famous article written in 1959 by a very distinguished professor named herb Wexler.

[00:46:47] And he said, I can’t figure out exactly why it is that brown V boards, right? Anyhow, learn at hand had some kind of doubt because what you did is you went from a constitution that in 1937 said [00:47:00] legislative supremacy is just about everything. Please don’t tell us we can’t pass a minimum wage law. And then you turn around and you start to say legislative system doesn’t mean anything when it comes to segregate.

[00:47:11] And there was a lot of disjunction intention. And now what happens is we’ve kind of gone over the other way. And what happens is we get too much protection. So if you go to the military academies today, you see so much woke jus prudence in which everybody who’s white is now a supremacist if somehow or other that’s an inherent attribute of being a white person.

[00:47:30] So there’s a lot of abuse moving in the opposite direction. And the great tragedy is it’s really hard to get somebody to keep to a middle position where we have a dominant colorblind regime touched perhaps with a dash of affirmative action, which I’ve defended in many cases, it’s just very difficult to keep it stable.

[00:47:47] And so what we’ve done is we’ve had a too long history of segregation, and now what happens is there’s too much power on the other side. And it’s just not at all clear how this is going to play out. It was the key issue in [00:48:00] Virginia, as you well know in the governor election ship, right? This past year.

[00:48:03] So, you are talking about something, which we’re not going to escape from a very easily.

[00:48:08] GR: . Thank you. Just as a closing question, if you were given an opportunity to. Right. The decision for brown and let’s say equal protection. Wasn’t the way you wanted to go. Is there a different way you could have gone or was it just something that was more of a sign of the time decision versus one based on the constitution?

[00:48:27] Well,

[00:48:27] Richard: I mean, what I would’ve done is something very different than I don’t think it would’ve been persuasive to many people. I would say if in fact, every other system in the United States had run the way in which it should have the problem of segregation, would’ve more or less taken care of itself. But I tie the rise of segregation to the, essentially the denial of franchise that black people in the United States and to the rise of private violence.

[00:48:53] And so what happened is if you’re systematically deprived representation in public affairs, The people [00:49:00] who hate you are going to rig everything in their favor. And so I would say we have to intervene on this, not so much because of the textual argument, but because everything else that we were supposed to do, right, we managed to do wrong.

[00:49:12] And the only way in which we can correct it is to sort of overcorrect what happens this often happens in legal circumstances. Somebody creates a kind of an impossible situation. And the only way you could correct is to go a little bit further than you would’ve gone. If they had done things, right.

[00:49:27] That’s the way I would’ve stressed it. So I would’ve stressed more. The imperfections of the system of governances existed in the south. And that particular point noted that there was some of it in the north. I probably would’ve said something to the effect. And, you know, we are aware of these changes. I mean, just to give you one illustration, I was stunned when I took constitutional law to realize that segregation was still the law.

[00:49:49] New Jersey until 1947. That’s the same year Jackie Robinson comes into the major league that the military was only integrated in 1948 by Harry [00:50:00] Truman in. And so I would build off of those things and saying, there’s now an emerging social consensus. Now, given all the things that we have done wrong, we can’t be too literal on the constitution.

[00:50:10] We have to deal with the fundamental moral defect of the previous kind of situation. And of course, people on the other side would say, you’re not a textual. Well, it’s very hard to be a textualist when everything else has gone wrong. And this is one of the great problems of constitutional. As in any theory, if you have a perfect constitution, which is perfectly ignored, how do you put the pieces together after all that is done?

[00:50:34] Federalism has two parts to it. One is you have comprehensive regulation by the federal government, which create cartels. And then you have blockades by state government, which fractionate a country and a little passage that I. I start to put out here is it, follows the difference between these two positions of progressive and classical liberalism can be briefly summarized as follows.

[00:50:56] The classical liberal view saw the dangers of both excessive national [00:51:00] power and the fragmentation of the national economy by the excessive assertion of state control over a full range of business activities. The progressive view was alert to the dangers of excessive fragmentation, but indifferent to those of excessive concentration.

[00:51:14] And what that last sentence means is if you try to understand the new deal, what were they trying to do with their expanded powers, whether you’re talking about agriculture, labor, transportation, or whatever, they were trying to create nationwide cartels. And one of the things that a classical liberal doesn’t like on monopolies, one of the things that he likes even less is state backing of monopolies.

[00:51:37] And so the progressive position on that issue is absolutely antithetical to the classical liberal understanding.

[00:51:44] Cara: Well, professor Richard Epstein. Thank you so much. I mean, what a tour force, I think that our listeners are going to have, to listen a couple times to get everything that we packed into this time.

[00:51:54] And that is amazing. Thanks so much for taking this time. Okay. I’m very glad to have helped take

[00:51:59] Richard: care, [00:52:00] sir. Okay. Byebye. Well, my pleasure.[00:53:00] [00:54:00] [00:55:00]

[00:55:29] As always

[00:55:30] Cara: listeners, we are gonna leave you with our tweet of the week. This time, Gerard. It’s depressing. So this is from education week. Some schools have moved to bolster staffing, but many are wait for it hoping for the best, without doing much else differently compared with last year. So this is an article all about how we’re not really making a move to minimize the impact of COVID despite the fact that we all know we’re gonna be living with this thing for a while.

[00:55:58] So, Gerard, I think [00:56:00] this just tells me we’re gonna have a lot to talk about this fall. And boy, boy are our schools stressed heart going out. If you are a school leader, Gerard, next week, we are gonna be speaking with some locals. We’re gonna be speaking with Milly Arbaje-Thomas. She is the CEO of the metropolitan council for educational opportunity.

[00:56:20] Also known if you’re in the Boston area as METCO and Roger hatch, they are co-authors of Pioneer’s newspaper. METCO funding. Understanding Massachusetts’s voluntary school desegregation program. This is not just Massachusetts centric. I promise it’s pretty cool and has implications for other states until then Gerard try and stay out of the heat.

[00:56:41] Take care of yourself. don’t sweat too much and lose more weight. We can’t stand to see you waste away and I’ll be looking forward to talking to you next week.

[00:56:50] Glad to have you back.[00:57:00] [00:58:00]