II. Liberalism as Limited Government

From a philosophical and conceptual point of view, liberalism is a doctrine not of the structure of governmental decision making or of the substance of governmental decisions, but rather of the scope of governmental power. Any genuinely liberal theory must offer an account of limits to public power. It is John Stuart Mill's harm principle that makes him a liberal, not his man-as-a-progressive-being account of human flourishing.²

It is John Rawls's account of individual rights that joins him to the liberal tradition, not his difference principle.³ “Liberal” democracy joins decision making based on the political equality of all citizens with limits on the legitimate scope of public decisions, however democratically they are made.

I do not want to suggest that liberalism is only about limited government. Historically, it has also involved assertions of basic human equality and efforts to liberate individuals and socioeconomic relations from the oppressive weight of ascribed characteristics and unchosen bonds. On the individual level, this has entailed faith in human agency in circumstances of reasonably equal opportunity; on the socioeconomic level, it has entailed confidence in the efficacy of robust markets and freedom of association.

In trying to parse possible differences between the “old” liberalism and the “new” liberalism, however, the issue we must keep in view is the nature and extent of limits on government. Here disagreements pervade the history of liberal thought and continue to the present day. In the U.S. context, the canonical type of position draws from the theory enunciated in the Declaration of Independence: governmental powers are doubly limited, by rights that individuals cannot alienate and by the parameters of public agreement. The Declaration famously declares that governments “deriv[e] their just powers from the consent of the governed,” by which it means that the exercise of governmental power beyond the bounds of that consent is presumptively illegitimate.

As in the broader history of liberalism, the development of limited government in the United States owes much to controversies over relations between church and state. In 1785, James Madison published his “Memorial and Remonstrance” against a proposed Virginia statute to publicly fund teachers of Christianity. The language of this influential defense of rights of religion and conscience against state authority is remarkable (and radical) enough to merit extended quotation:

Madison's efforts to secure religious authority against state power continued at the national level during the early constitutional period. Indeed, two of the amendments that Madison drafted for inclusion in the Bill of Rights, one of which would have been binding on the states, made explicit reference to “rights of conscience.” The idea of a robust right of conscience as protection against otherwise legitimate state acts has reemerged episodically throughout the history of U.S. jurisprudence, most notably in cases involving Jehovah's Witnesses and conscientious objectors to military service.⁵

In the latter case, the Supreme Court has deliberately expanded the scope of conscience beyond formal religion to include deep, identity-shaping beliefs that play a role in individuals' lives equivalent to that of faith for the devout. So understood, rights of religious conscience may be regarded as the kernel around which broader notions of rights of autonomy and privacy gradually developed.

III. Two Kinds of Limits on Government, Four Public Philosophies

Since the onset of corporate industrialization in the decades following the Civil War, the debate over limits to governmental power has taken the form of an interplay between two baskets of rights, which I will call property rights and privacy rights (the latter are sometimes referred to as rights of autonomy or personal security). This dyad generates four ideal-typical alternatives, each of which finds a rough analogue in American politics and jurisprudence. Strong property rights coupled with weak privacy rights yield mainstream conservatism. Strong property rights and strong privacy rights yield classical liberalism (also called libertarianism). Weak property rights and weak privacy rights yield Progressivism, which shaped the thought and policies of the early New Deal. Finally, weak property rights combined with strong privacy rights are the hallmark of contemporary liberalism. Each of these ideal-types embodies a form of philosophical liberalism—that is, an element or elements of limited government—a fact obscured by contemporary political terminology.

Of these four tendencies, which have done so much to shape U.S. politics since the 1890s, the Progressivism that originated in the late nineteenth century and bestrode the landscape like a colossus during the 1930s and 1940s is arguably the weakest today. The two dominant groupings, mainstream conservatism and contemporary liberalism, contend with one another across the full range of property and privacy issues. For their part, a small but hardy band of libertarians makes common cause with conservatives on issues involving property rights, such as regulation and the interpretation of the takings clause of the Fifth Amendment, and joins with liberals on issues involving privacy rights—those often thought to be threatened by the USA PATRIOT Act, for example.⁶

These categories help illuminate changing patterns of U.S. Supreme Court decisions. Beginning in the 1890s, the Court deployed a broad construction of property rights against the states while leaving political and civil liberties under the aegis of the states' power—a jurisprudential strategy that reached its peak in the famous (for some, infamous) 1905 decision in Lochner v. New York, which struck down New York State's efforts to limit the number of hours employers could require their employees to work.⁷

Legal commentators and dissenting justices began asking how these two tendencies could be reconciled.

In 1920, for example, the case of Gilbert v. Minnesota came before the Supreme Court.⁸

Gilbert, a pacifist, had criticized American participation in World War I. He was convicted under a state statute prohibiting advocacy or teaching that interfered with or discouraged enlistment in the military. While the Court's majority declined to extend Fourteenth Amendment liberty guarantees to Gilbert, Justice Louis Brandeis dissented. He wrote:

Over time, the Court's unwillingness to abandon its doctrine of broad economic rights helped create the basis for a broader understanding of constitutionally protected and enforceable liberties. Consider the controversy sparked by a Nebraska law which, reflecting the nativist passions of the World War I era, prohibited instruction in any modern language other than English. Acting under this statute, a trial court convicted a teacher in a Lutheran parochial school for teaching a Bible class in German. In Meyer v. Nebraska (1923), the Supreme Court struck down this law as a violation of the Fourteenth Amendment's liberty guarantee.¹⁰

Writing for a seven-member majority, Justice James Clark McReynolds declared: “That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally, and morally, is clear; but the individual has certain fundamental rights which must be respected. A desirable end cannot be promoted by prohibited means.”¹¹

Two years later, in Pierce v. Society of Sisters, the Supreme Court rejected the right of a public authority (in this case, the state of Oregon) to require all parents within its jurisdiction to send their children to public schools. In justifying its stance, the Court declared: “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public school teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”¹²

This does not mean, of course, that family activities are immune from political regulation. The Pierce Court explicitly recognized a substantial degree of legitimate governmental regulation of the family, including its educational decisions. For example, the Court's understanding of the fundamental theory of liberty on which it relied allowed the state to require “that all children of proper age attend some school.”¹³

It is not far-fetched to think of the 1920s as a brief quasi-libertarian moment (perhaps the only one) in the history of U.S. constitutional jurisprudence, a period in which key Supreme Court decisions affirmed both strong property rights and a range of immunities against governmental intrusion into personal and family life. The theory of liberty enunciated in Meyer and Pierce pointed in both directions simultaneously. Some who understood these consequences rejected the underlying principle. For example, while still a law professor, the ardent Progressive Felix Frankfurter inveighed against Pierce when the decision was first handed down, on the grounds that a Court that deployed fundamental principles of liberty against state regulation of education could deploy comparable principles against state regulation of the economy. If you like Pierce, Frankfurter's reasoning went, you must accept Lochner. For Frankfurter and other Progressives, that was a cost that outweighed the gains.¹⁴

Progressives did not have to wait long to turn the tables. The radical social critic Randolph Bourne once remarked that “war is the health of the state.” The Progressivism that reached its apogee in the decade following Franklin D. Roosevelt's accession to the presidency in 1933 perfectly illustrates Bourne's point. The Great Depression, the only peacetime equivalent of war in American history, flowed directly into the real thing. The same Supreme Court that sustained the constitutionality of the New Deal's economic legislation¹⁵

gave its blessing to the internment of Japanese Americans.¹⁶ In light of the New Deal's disregard of both property rights and civil liberties, one may wonder whether it qualifies as “liberal” at all. Taking a broader view, however, one might justify FDR's program as a response to a national emergency—the deliberate impairment of some traditional liberties in the name of preserving the constitutional system of liberty as a whole. In similarly threatening circumstances, Abraham Lincoln defended his suspension of habeas corpus in 1861 with the argument that this extreme measure was needed to save the Constitution. Should all the laws but one go unexecuted, he asked, just to honor the requirements of the one? If only a stable constitutional regime can sustain the rule of law, including the Great Writ, then is it not self-defeating to adhere to the writ at the cost of endangering the survival of constitutional government?

Pushed to an extreme, this argument converges with the Vietnam-era claim that it was “necessary to destroy this village in order to save it.” Nonetheless, a serious philosophical issue lurks beneath the history: Should we understand the rights that limit government as inviolable regardless of circumstances, or rather as aspects of an overall system of goods and values that public power seeks to enhance? (This issue is what Robert Nozick had in mind when he distinguished between rights as side-constraints and a utilitarianism of rights.)¹⁷

The former view of rights has the advantage of drawing a bright line that eliminates abuses of discretionary power, the sort of reasoning that led Justice Hugo Black to insist that when the Constitution says that Congress shall make “no law,” it means just that—no law whatever.¹⁸ It has the disadvantage of preventing legislatures and courts from assessing the overall social costs of holding that line.

This is an important disadvantage, I would argue, because of the pluralist nature of value. On this account, genuine goods are heterogeneous, lacking either a common measure of value or a once-and-for-all internal ordering. There may be good reasons to prefer certain goods to others in specific circumstances; there may be strong presumptions in favor of certain goods that only the weightiest considerations can rebut; but there are no goods that dominate all others in every circumstance, come what may. Societal decisions represent an endless series of contestable judgments about the most sensible and sustainable balance to be struck among values that compete with one another, at least in the real world.

Because constitutions have the same underlying moral structure as social life, similar considerations apply. Every constitution establishes a sphere of plural goods and values containing latent tensions that invariably emerge in the course of application to specific circumstances. This is a principal source of hard cases, which no theory of constitutional interpretation can eliminate. If judging were a matter of measurement, a sufficiently well-programmed machine could do it. But it isn't. It is more than a tautology to insist that judging involves the exercise of judgment, as distinct from calculation. Moreover, judging is not just what judges do; it is what legislatures and executives, after due deliberation, must do as well.¹⁹

Fortunately, judging does not take place in a vacuum. Constitutions contain not just values, institutions, and rules, but also public purposes that frame and motivate everything else. It is not often enough remarked that the U.S. Constitution is an explicitly purposive document. Its preamble could have read simply, “We the People of the United States do ordain and establish this Constitution for the United States of America.” This would have been a straightforward enunciation of the basic republican principle of legitimate government. But of course the preamble says more than that: after its authors declare their identity and before they specify their deed, they insert the crucial words “in Order to,” following which they declare what goods the document values most highly and what purposes it is intended to promote.

Although necessarily general in phrasing, this enumeration is nonetheless meaningful, both for what it affirms and for what it excludes.²⁰

“Domestic Tranquility” affirms the importance of social continuity and order, by implication ruling out Thomas Jefferson's preference for periodic revolutions to lift the dead hand of the past. The reference to the “Blessings of Liberty” made emphatically clear not only the high value of that good, but also the norm that order was not to be achieved through oppression. Most notably, the goods enumerated in the preamble are this-worldly and for the most part tangible. There is no mention of promoting religion, let alone a specific religion; there is not even a mention of fostering morality. The drafters of the Constitution probably believed that without religion and morality, the regime the document sought to establish would fail; the president of the constitutional convention, soon to be the first president of the United States, certainly believed that. Nonetheless, while the Constitution relied on certain civic virtues, it established no institutions to promote them. That task, the founders believed, was someone else's business.

IV. The Preamble, Rights of Property, and the Takings Clause

Constitutional purposes turn out to be relevant to constitutional interpretation, often in surprising ways. Consider the ongoing debate over the reach of the Fifth Amendment's takings clause, which states that “private property [shall not] be taken for public use, without just compensation.” Note the implicit political theory behind the clause, which runs roughly as follows: There is such a thing as the “public,” as distinct from the ensemble of private property owners, and this public has some claims that rank higher than the claims flowing from ownership, however uncontested and long-standing those claims may be. Under certain conditions (specified in practice by applying the terms “public use” and “just compensation” to particular circumstances), even a government that possesses limited powers and is dedicated to principles of liberty may legitimately act on behalf of the public to override rights of private ownership. It is in respecting the bounds set by those conditions, rather than by giving absolute respect to the boundaries established by individual holdings, that government remains within the limits of its power and avoids oppressive acts.

For purist libertarians, this kind of theory is unacceptable, and the policies flowing from it are illegitimate. The Cato Institute's Sheldon Richman characterizes the takings clause as “one of the few parts of the Bill of Rights that authorizes the government to violate individual liberty,” and he insists that “a true property rights movement should not stop short of calling for eradication of the takings clause, … the root of all evil in this matter.”²¹

While mainstream conservatives are not willing to go that far, they do seek to limit takings by restricting what counts as a genuinely “public use.” This is an inherently challenging task, and the Supreme Court has not made it any easier.

In Kelo v. New London, a decision handed down in June 2005,²²

the Court ruled in favor of the city of New London, which had designed a plan to revitalize its downtown and waterfront areas. The plan sought to capitalize on the impending arrival of a new research facility to be built by the pharmaceutical company Pfizer by developing the ninety acres adjacent to the proposed new facility with a new waterfront hotel and conference center, a river walk, a new U.S. Coast Guard museum, a renovated marina, and 90,000 square feet of research and development office space. In the process, the plan would displace a number of homeowners, many of whose houses had been in their families for generations.

As plaintiffs, the homeowners alleged that implementing the plan would violate the “public use” requirement of the Fifth Amendment, as made applicable to the states through incorporation into the due process clause of the Fourteenth Amendment. While the Supreme Court had long held that non-blighted property could be taken in the process of urban renewal to revitalize a blighted area, the plaintiffs argued that taking non-blighted property for the generic purpose of economic development and increasing tax revenues went well beyond previous holdings and breached the bounds of public use.

A five-member Court majority disagreed. Writing for the majority, Justice John Paul Stevens observed that the facts of this case placed it in a gray zone between two well-established poles. On the one hand, the Constitution clearly forbids government from forcibly transferring property from individual A to individual B without A's consent. On the other hand, the Constitution just as clearly permits government to take private property for use by the general public (public roads and parks, for example) and for private entities, such as railroads, that are prepared to operate as common carriers, open to all. Still, in prior cases the Court had broadened the concept of public use beyond general access to include public purposes. New London's development plan was acceptable because it served such a purpose—namely, economic revitalization of a struggling city. Promoting economic development, Stevens noted, was a “traditional and long accepted function of government,” and there was no principled way of distinguishing it from other functions that the Court had already deemed to meet the test of public use. In the past, moreover, the Court had deferred to legislative judgments about policies needed to carry out these purposes in specific contexts, and the majority saw no need to start second-guessing local authorities now.

Writing for the four dissenters, Justice Sandra Day O'Connor conceded that in previous decisions the Court had indeed allowed takings that serve a public purpose “even if the property is destined for subsequent private use.”²³

In Kelo, however, the majority had expanded the meaning of public use so far as to deprive it of limiting force by holding that the sovereign authority may take property currently in ordinary, innocuous use and give it over to other uses by other private parties, so long as there is some overall public benefit: “if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words ‘for public use’ do not realistically exclude any taking, and thus do not exert any constraint on the eminent domain power.”²⁴ To be sure, the majority's position still excludes flatly irrational takings, ones that lower the productivity of the property taken or that impose net burdens on the public. But this weak residual limitation will be of little comfort to property owners who are newly exposed to the possibility that public authorities may take their property if they can identify a higher-valued private use that increases tax revenues. Under this doctrine, Justice O'Connor concludes, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”²⁵

In a separate dissent, Justice Clarence Thomas agreed with O'Connor but (characteristically) radicalized her argument. The majority's opinion, he argued, has the effect of effacing the distinction between the Fifth Amendment's takings clause and the preamble's general welfare clause: the majority's logic suggests that if a taking promotes the general welfare, it is presumptively legitimate, in effect eliminating the criterion of public use as a limitation on governmental power. The root of the error, Thomas claimed, lies in broadening the concept of “public use” beyond “use by the public” (such as public buildings and public conveyances) to include public purposes. Once the Court made that move, it began sliding down a slippery slope, at the bottom of which lies Kelo's public benefit test.

For our purposes, the key point of Thomas's dissent is his historical reconstruction of how the Supreme Court came to stray from the straight and narrow constitutional path. The two key steps were, first, broadening “public use” to include public purposes, and second, deferring to the legislature's definition of public purposes and its determination that specific policies would promote them. It turns out that the Court made these missteps in two cases decided in the same year—1896, near the height of the era of strong judicially protected property rights!²⁶

The Court built on these cases during the latter half of the twentieth century to create the precedents on which it relied in Kelo. To return takings clause jurisprudence to what he argued was its original intent, Justice Thomas was compelled to advocate overruling a line of cases stretching back more than a century.

The spokesman for the Supreme Court in both the 1896 cases that Thomas rejects was Justice Rufus Peckham, who was to achieve notoriety a decade later as the author of the majority opinion in Lochner. In broadening the public use clause, Justice Peckham reasoned that to adhere to the narrower construction would be to forbid takings for the purpose of constructing an irrigation ditch, which would have meant that no general system of irrigation could proceed. This would be an unacceptable outcome, Peckham argued, and thus the reading of the Constitution that required it could not stand.²⁷

Justice Thomas's response goes to the heart of the matter: Peckham's claim is “no statement of constitutional principle,” because it is a mistake to assume that the Constitution requires, or even permits, a course of action that many believe represents the most advantageous course of action. The results-oriented jurisprudence of the late nineteenth century was no more acceptable than is the comparable interpretive strategy of the early twenty-first century. The takings clause is one thing, the states' police powers²⁸ another, the general welfare clause yet another: the takings clause is narrower than police powers and constrains the kinds of results-oriented activities toward which the general welfare clause points. The takings clause is one of the many features of the Constitution that seek to minimize the possibility of tyranny; it does not seek to maximize anything. To the extent that outcomes matter, Justice Thomas emphatically agreed with Justice O'Connor that the expansive reading of the takings clause was most likely to maximize the influence of powerful forces, corporate as well as governmental, at the expense of relatively powerless poor and minority citizens.

Justice Thomas's dissent forces us to ask whether any interpretation of an explicitly purposive document can be indifferent to that interpretation's results. The noted University of Chicago law professor Richard Epstein argues that it cannot. His thesis is that there is a distinction between rules of individual conduct, which are presumptively nonconsequentialist, and rules of social organization, which are emphatically consequentialist. Thus, he asserts: “The traditional natural law justifications for freedom are not sufficient to sustain the case for individual liberty or for limited government. We are, as it were, all consequentialists now.”²⁹

Epstein deploys this proposition against nonconsequentialist (or, as he puts it, “deductivist”) libertarian defenses of inviolable private property and in defense of the state's power of eminent domain. The deductivist position, he argues, does not take into account the possibility that individual holdouts can thwart successful cooperation that increases aggregate welfare and benefits all. The cooperation of ninety-nine out of a hundred private landowners along a proposed railroad route will not suffice. Some authority above the individual contractors must bring the recalcitrant landowner into line. The state that compels the sale must offer the landowner just compensation, which Epstein defines as the highest value of the land in any alternative use whose value is not dependent on the railroad that is about to be built: “The public, including those whose property is condemned, gain the benefit of the railroad, but if compensation is correctly calculated—a big if—no individual suffers financial deprivation in the process. State coercion is used to create the win/win situations found in private contracts.”³⁰

In the course of working through a series of examples involving taxation as well as eminent domain, Epstein arrives at a general proposition about social philosophy. “The central challenge to any political theory,” he asserts, is to “devise a set of institutions that first allows and then controls the use of coercion against individual citizens for their own benefit…. The traditional deductive form of libertarianism allows for state force to protect against aggression and fraud. The more complex version recognizes that state power is also appropriate to overcome holdout problems by the limited use of force. This two-tier inquiry clearly legitimates some forms of government action, but by the same token it makes the case against state intervention stronger in those settings where none of these justifications are available.”³¹

But doesn't this two-tier approach sacrifice liberty to other values of lower rank (at least from the classical-liberal perspective)? Not at all, Epstein replies: “Our limited use of coercion is done with the paradoxical intention of expanding the scope of individual freedom.”³²

To an unsympathetic reader, this unexpected echo of Jean-Jacques Rousseau's dictum that human beings must sometimes be forced to be free may prove disconcerting. As we saw earlier, however, it rests on a serious philosophical proposition, not easily dismissed. If liberty is a human good, then we can ask whether it has a quantitative dimension and, if so, how that dimension is structured. It seems plausible to say that an individual can be not only free or unfree, but also more or less free: Martha Stewart in home detention is not as free as her unconvicted fellow citizens, but she is freer than she was in federal prison. (In the language of social science, freedom is a continuous rather than a dichotomous variable.) It is similarly plausible to say that a society can be more or less free, depending on the decisions it makes and the circumstances in which it is placed. A “system of liberty” is an aggregate, measured across dimensions and individuals. If so, it is conceptually possible to say that public authorities can act to maximize liberty, even at the cost of restricting the liberty of some individuals. In Epstein's railroad example, the state would be understood as acting to enhance the liberty of the ninety-nine willing sellers to enter into an arrangement that would benefit both them and the future users of the railroad, a gain in liberty that far outweighs the loss for the holdout who is compelled to sell against his will.

There is an obvious objection to this approach. If individual rights are, by definition, protections designed to withstand the force of majoritarian and aggregative claims, then Epstein's consequentialism of liberty leads straight to the conclusion that rights in the strict sense do not exist (except perhaps for each individual's right to be treated equally in the consequentialist calculus). Indeed, the logic of Epstein's position on its face is that while nonconsequentialist norms help structure morality at the individual level, they are not adequate at the societal level. Fiat justitia et pereat mundus³³

is not tolerable as a principle of social justice; a constitution is (famously) not a suicide pact. Even in less extreme circumstances, norms that are designed to safeguard individuals but that impose large costs on the liberty or welfare of others will come under intense pressure. At some point, for example, rules of evidence designed to minimize the possibility that the innocent will ever be convicted may become so stringent as to allow large numbers of criminals who would otherwise be incarcerated to continue terrorizing their communities. A reasonable conception of social morality will not foreclose the possibility of loosening these rules of evidence to promote the ability of members of the public to enjoy their lives, property, and liberty with a greater measure of certainty and security.

Nonconsequentialist defenders of liberty will stumble, of course, at the threshold of Epstein's argument. But it is also possible to criticize it in consequentialist terms. Legal scholar Randy Barnett, for example, acknowledges that without some version of Epstein's approach, the problems that the principle of individual consent poses for social coordination may be insoluble. Nonetheless, he fears, the cure is worse than the disease, because it opens the door to unjust uses of coercive power. For example, “the consequence of rent-seeking—of interest groups using the coercion of the state to acquire unearned benefits for themselves—matters as much as the consequence of failing to build a road. Ask the residents of Poletown, whose Detroit neighborhood was destroyed by eminent domain to build a General Motors assembly plant.”³⁴

The problem, Barnett concludes, is that once we start down Epstein's consequentialist road, it is hard to see how we can stop short of the conclusion the Kelo majority reached.³⁵

An intriguing question lurks just beneath the surface of Barnett's challenge—namely, how much of a deviation from New Deal jurisprudence does Epstein's position represent? My answer: Not as much as parties to the dispute imagine. Like the New Deal era Supreme Court, Epstein employs a results-oriented theory in the service of the general welfare. To be sure, his understanding of the general welfare differs from that of the New Dealers. Nonetheless, Epstein and the New Dealers are as one in their opposition to the kind of formalism that dominated American law schools in the early decades of the twentieth century.³⁶

Cass Sunstein distinguishes between “judicial maximalism,” which seeks coherent theoretical foundations to ground individual decisions and connect them with one another, and “judicial minimalism,” which stays closer to the surface, renders decisions on a case-by-case basis, and makes no effort to find a single unifying theory.³⁷

Justices Antonin Scalia and Clarence Thomas are maximalists; former justice Sandra Day O'Connor was a minimalist. Within this framework, Epstein falls in the same category as Ronald Dworkin: both are unabashed maximalists who offer competing theories about the general principles courts should use to reach their conclusions.³⁸ It is even the case that their disparate theories have something in common: neither represents a straightforward defense of the natural rights tradition that suffuses the Declaration of Independence and constituted the lingua franca of early American jurisprudence.

It is conventional, and not entirely misleading, to describe thinkers like Dworkin as “egalitarian” and those like Epstein as “libertarian.” It is certainly true that Dworkin speaks more about equality than Epstein does, and that Epstein returns the favor with regard to liberty. Nonetheless, Epstein subscribes to the egalitarian premise “everyone to count for one, no one for more than one” just as firmly as Dworkin. And like Epstein, Dworkin is more than willing to use aggregative consequentialism to reach policy conclusions. Thus, Dworkin has no trouble arguing that as long as the interests of every student are given equal weight, no one has a right to complain if the criterion of general social benefit leads legislatures and courts to approve race-sensitive admissions policies.³⁹

If the usual bright lines blur under scrutiny, do any clear distinctions between egalitarians and libertarians remain? Although further reflection may turn up counterarguments or counterexamples, two distinctions seem promising. Both libertarians and quasi-libertarians of the Epstein variety reject distributive patterns as acceptable components of the general good or welfare that takings of private property may promote, while at least some egalitarians would permit the inclusion of such patterns in the general welfare. Thus, those in or near the libertarian camp reject the holding of at least one of the two key cases on which the Kelo majority relied—Hawaii Housing Authority v. Midkiff (1984),⁴⁰

in which the Supreme Court upheld a taking that sought to reduce an extreme concentration of land ownership on the island of Oahu.⁴¹

Second, and more fundamentally, a distinction remains between consequentialist and nonconsequentialist social philosophies (and legal understandings). There is such a thing as a jurisprudence of rules justified on nonconsequentialist grounds. As the case of Justice Thomas shows, Epstein is wrong: we are not “all consequentialists now.”⁴²

When Thomas rejects takings based on public purposes rather than public use as inconsistent with the original intent of the Fifth Amendment, he is not making a consequentialist argument. In principle, he must acknowledge the possibility that policies forbidden by the discernible intention of constitutional language may be more desirable than those it permits. While this state of affairs is unfortunate, and in extreme cases may warrant constitutional revision, it does not ipso facto warrant an interpretive strategy that departs from original intent.