My thesis is that modern progressive or social-democratic liberal constitutionalism invites economic decline and political polarization, even if it avoids the massive institutional rot that pervades authoritarian regimes. Its key omission is its conscious decision not to specify the protected individual rights, of which individual autonomy, private property, and contractual freedom are key. Yet ironically, not one of these is typically listed in the standard human-rights statutes, which instead focus on three different factors: positive rights to education, health, and housing; overcoming the widening inequality of wealth; and demarcating an ever-larger list of improper grounds for discrimination. Regrettably, the modern progressive hunt for social-democratic rights becomes a major source of its own undoing. Indeed, its wholesale indifference to the classical liberal agenda will tend to close off avenues for personal and economic advancement, and thus fuel the rise of the dangerous populism and intolerance on both the left and the right, leading to a decline of respect for the democratic institutions.
Epstein, Richard A.
"The Wrong Rights, or: The Inescapable Weaknesses of Modern Liberal Constitutionalism,"
University of Chicago Law Review: Vol. 85:
2, Article 7.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol85/iss2/7