3 Chi J Intl L 455
Richard A. Epstein

This article is a critique of Mark Tushnet’s rejection of the classic liberal tradition in State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations. It defends the classic liberal synthesis in three stages. First, it rejects the continuum hypothesis of the relationship between force and freedom, in part by differentiating between a judge interpreting what parties have contracted for and a judge pronouncing what the terms should be. It then goes on to explain the line between state and private action by presenting an alternative to Tushnet’s attack of Shelley v. Kraemer. Finally, it explores why a constitution seeking to bring about positive rights will weaken judicial review, using the Grootboom South African constitutional court case as an example. The article concludes with some thoughts on how South Africa should develop into a classic liberal state, once it has settled the wrongs of its past.