Classical Liberal Criminal Law

Abstract

This essay, written for a Festschrift for Richard Epstein, argues that the classical liberal principles he outlined provide a valuable frame for viewing government power in criminal matters that we would do well to use more often as a guide. Applying these principles in the criminal law context shows that they can produce outcomes that are more progressive than the output of many other constitutional theories more commonly associated with liberal thinking. The essay pays particular close attention to proportionality review under the Eighth Amendment.