The latest National Review features Joseph Tartakovsky’s review of Richard Epstein‘s latest book, Design for Liberty: Private Property, Public Administration, and the Rule of Law. Described as “what amounts to a 200-page brief against the errors of modern American law and governance,” the book focuses special attention on problems such as overregulation.
The old order was largely founded on the law of contract, where private individuals freely bound themselves, and the law of property, in which you did as you liked with your property so long as your use didn’t intrude upon others. Now, he argues, officials routinely supplant tailored agreements or restrict the disposition of one’s own land. Epstein particularly laments what he sees as the willingness of courts to accept an agency’s “reasonable” interpretation of its own statutory mandate. He points to how the Army Corps of Engineers, once tasked with managing the “waters of the United States” (i.e., waters capable of supporting navigation), has been permitted, after the Supreme Court’s Rapanos decision (2006), to interpret its domain to include wetlands, sloughs, mudflats, streams, prairie potholes, even “natural ponds.” The “secret of good government,” he writes, is to “select a few key tasks and to perform those well,” tasks such as “picking up the garbage from public streets.” The First Amendment, he has said elsewhere, should have stopped after “Congress shall make no law.”