This is CBSI in the world. I'm John Bachelor with Professor Richard Epstein of the Hoover

Institution in conversation with Ricochet, a very helpful discourse on federalism in

many areas. However, I'm going to focus on something that Richard says towards the end

of the interview about the contest, the competition, the challenge between the classical liberal

Richard Epstein, the professor, and the new deal progressives or their inheritors today

in the 20-second century. As I understand it, Richard, the way you present it is,

classical liberals are concerned with excessive state power and prefer a mild up and easy hand

when it comes to the state power. The new dealers, and I'm going back now to 1937,

were interested in establishing what we can call today monopolies or national cartels.

Who is ahead in this contest if 1937 to 2022? Has it tipped one way or another because you say

balance is very difficult to maintain? Yes, look, I mean, it turns out the commerce

clause at the federal level had to worry about two issues. One is could state block the movement

of interstate commerce. I'm putting excessive safety regulations that made it impossible to

shift goods, and the progressives, for the most part, are not in favor of bulk organization,

and so they support the ability of Congress to open up these things. And strangely,

Congress never does that, and so there was a development known as the dormant commerce clause,

where if you can show that a local regulation had a very powerful impact on the movement of goods

state law lines, you had to justify it by showing some kind of environmental interest. It's a

kind of balancing test that we just talked about in connection with the Bramerton case.

And for the most part, the conservators and the liberals did pretty well on that.

Together, one of the ironies is one of the strongest opinions on this stuff was written by

Robert Jackson, very strong dormant commerce clause guy, and yet he was the guy when it came to

...