Posted 5:13 PM by Robert

Love and Let Love: The New Richard Epstein, The One From From The University Of Stepford

Richard Epstein, a professor of law at the University of Chicago and a senior fellow of the Hoover Institution, has made many brilliant contributions to legal theory generally and federal constitutional law, in particular. As do his contributions to the importance of property rights and the "takings clause" of the Fifth Amendment, his work has often succeeded by demonstrating that "libertarian" principles widely dismissed as mere recent ahistoric innovations (sometimes from Ayn Rand, God help us!), or internally incoherent, or somehow superseded or simply irrelevant, are, in fact, historically, textually and precedentially grounded, coherent and consistent to the point of necessity, and central to current controversies. But Live and Let Live, Professor Epstein's recent contribution in the Wall Street Journal to the same-sex marriage debate, does not come close to succeeding, except as a cautionary example of how even the most accomplished people can lose their way in this treacherous terrain.

Professor Epstein's huge analytic problems are evident just from the utter absence of the word "child," or any derivative of equivalent of that word, in his entire opus. Yet, the traditional family - and therefore marriage - is entirely constructed from the foundation of accommodating and fostering children. Unlike the version of Professor Epstein manifested in this uncharacteristically shallow effort of his, I do not pretend to have the correct answers to "same sex marriage" questions  - or even to the questions of how "same sex marriage" relates to libertarian principles.
 
But I do know that those answers are most certainly not going to be forthcoming unless the correct questions are asked and the correct issues are spotted. Questions and issues relating to children have always been an inconvenient element of sex, and they remain as inconvenient for the over-intellectualized libertarian law school professor as they have always been for the over-eroticized high school football quarterback. But any such professor or quarterback who attempts to ignore those questions and issues is in for some very messy surprises a little later in life.
 
The fact is that marriage is not even close to being a two-person game or contract or institution or anything else on wants to call this sui-generis structure - children make sure of that. And the necessary consideration of those small but inconvenient actors makes Professor Epstein's failure to even mention them in attempting a libertarian analysis more than passing strange, and ultimately as intellectually irrelevant as any analysis that completely ignores the foundation of the institution under consideration.
 
The failure of Professor Epstein's analysis to recognize that marriage cannot be dealt with meaningfully as a two-party affair is even stranger given the fact that he has been a particularly pointed and eloquent critic of those pseudo-libertarian analyses of abortion rights that fail to acknowledge that at some point the fetus must be considered, and that the resulting third-party considerations change matters completely. For example, Professor Epstein, called [Richard A. Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," in Philip B. Kurland et al., The Supreme Court Review, 1973, (Chicago: University of Chicago Press, 1974): 184.] the Supreme Court's stand on fetal viability "astonishing," pointing out that Roe v. Wade placed no meaningful barrier against abortion even after viability:

... the Court holds that the state is entitled, but not required, to protect its, the unborn child's, interest. The reason for the entitlement is that the fetus is now capable of an independent life outside the mother. But the problem is, why should not the claims of the fetus [between viability and birth] be sufficiently strong to require, and not merely to permit, the state to intervene for its protection? After the Court expressed such firm views on the proper balance [between the claims of the woman against those of the fetus] until the onset of viability, it gave no explanation why the state must be allowed to make its own choice after that time."

Professor Epstein's old critique of the Court's abortion rulings is clearly correct. Much of the Court's effort to craft a constitutional law of abortion has been utterly incoherent exactly because at some point before birth the "fetus" clearly become one of those inconvenient "children" who render any attempt to approach the matter as an exercise of two-party libertarian principles pointless.

Similarly, any effort - such as Professor Epstein's new one in the Wall Street Journal  - to analyze the institution of marriage while ignoring that its foundations lie in the accommodation of children is also just as doomed to incoherence, simply because any such analysis will necessarily fail to ask the right questions or identify the right issues - or even identify where one might look to find those questions and issues.

And if the reader wanted any further evidence of just how badly off track Professor Epstein has caroomed, it is worth meditating for an entire minute on the following question:

Does the reader really think that the legal prohibition on marriage between a human and a dog has ever had anything whatsoever to do with Professor Epstein's assertion that "people and poodles can't tie the knot because one half in the relationship (some would say the better half) lacks the capacity to enter into a contract"?

That quip may make for a clever joke around the law faculty lunchroom dining table. But it's presence in what Professor Epstein presents in the Wall Street Journal as a serious attempt to apply (or at least to outline an application of) libertarian principles to same-sex marriage is a hideous personal and intellectual embarrassment. Unfortunately, Professor Epstein is correct to include the quip here as a serious observation - exactly because it follows from and exists on precisely the same intellectual level as his entire argument.

Which is sad. And very strange. Sad and strange enough to make one wonder if that's still really Richard Epstein sitting in the elegant Eero Saarinen glass pavilion out on the Chicago Midway - or is it a fancy simulacrum that sounds and looks the same, but without the intellectual combativeness, substance and soul of the original. Perhaps all that was lost in a misquided quest to "live and let live" or "love and let love" in late middle age?