Document Type

Article

Publication Date

1998

Abstract

This article is a response to Fidelity Without Translation by Richard Epstein (1997).

Explaining why a body of work is influential is inevitably a complex matter, but part of the success of Professor Epstein’s writings undoubtedly stems from their grounding in the original understanding of the Constitution. He has claimed the mantle of the framers, and that claim gives his reading of the takings clause a deep resonance it would not otherwise have.

Explicitly rejecting Epstein’s reading of the clause and the history that lay behind its adoption, the author has previously advanced his own view of the original understanding and, drawing on Professor Lawrence Lessig’s translation model of constitutional interpretation, argued that proper regard for that understanding should lead us to adopt a political process theory of the takings clause.

In his recent essay, Fidelity Without Translation, Epstein takes both Lessig and the author to task, criticizing Lessig’s model and the authors applications of it (as well as Lessig’s application of his model to the commerce clause). “We don’t need rarefied theories of linguistic interpretation that celebrate the confluence of context, structure and changed circumstances,” he writes. “What we need are careful readings of text that capture the balance, sense and logic of the original doctrine.”

There is an irony to this criticism. Of all of the major approaches to the takings clause that pre-existed Lessig’s work, Epstein's is the only one that can in any way be said to anticipate Lessig’s translation model. Epstein is thus criticizing Lessig for preaching what Epstein practices.

Publication Citation

1 Green Bag 2d 177-183 (1998)