Bernard H. Siegan, RIP

If anyone ever fit the term "a gentleman and a scholar" it was Bernie Siegan. Bernard H. Siegan, Distinguished Professor of Law at the University of San Diego law school, died Monday at the age of 81 after being hospitalized since late last year with a stroke. One of the most persistent and quietly influential advocates of freedom in this country, and a valued friend to many of us, he will be sorely missed. But he left a legacy of distinguished scholarship that strengthened the case for limited government and a free society and will no doubt influence generations to come.

Bernie was both a gentleman, unfailingly kind and courteous, and a gentle man. His wife Shelley might know differently, but I would be surprised if he ever raised his voice. When he argued he was always in full command of the relevant information, but he never bludgeoned someone who had not yet come around to his point of view. Instead he would gently offer alternative ways of looking at things, civilly point out holes in an argument, tease out the implications of an assertion, and politely invite others to join him in what was obviously the correct conclusion.

Yet within that gentle exterior beat the heart of an intellectual lion. Once his research had convinced him of a position, he was utterly unafraid to state it, whether anyone else agreed or not.

He crossed intellectual swords with Antonin Scalia and Robert Bork — and was effectively vetoed for a position on the federal bench by Ted Kennedy. I feel a special tie because during the 1970s Bernie Siegan wrote a regular column for the Orange County Register on constitutional issues.

When he published what was probably his most influential book, Economic Liberties and the Constitution, in 1980, he was almost alone among legal scholars in believing that the U.S. Constitution was written in large part to limit the ability of government to infringe on property rights and economic freedom. The conventional wisdom was that Congress and state governments had broad, almost unlimited powers to regulate our economic activities and limit our use of our property, and the courts were commanded to show great deference so long as a regulation had even the slightest "rational relationship" to some public policy goal.

I met him shortly after the book was published and did a full-page question-and-answer piece for the Register. Later that decade, when he was chairman of the presidential commission on housing I attended hearings the commission held in Houston and got to see first-hand, with running commentary, what Bernie had written about that city in his 1972 book, Land Use Without Zoning.

In the book on the constitution, going back to the Magna Carta and before, Bernie demonstrated that virtually the entire history of English common law, with which almost all the framers were familiar (some to the point of near-reverence), was one of limiting arbitrary government power and protecting private property and personal freedom. He argued that when the Supreme Court prior to the New Deal struck down various economic regulations it was being true to the letter and spirit of the Constitution, and illustrated the dire results in loss of freedom and prosperity that followed excessive deference to legislative whims.

That book precipitated a revolution in legal scholarship. Scholars like Richard Epstein and Roger Pilon at Chicago were already pursuing research along similar lines, but as Mr. Pilon told me, "Bernie was older and his scholarship was more advanced. He demonstrated that the insights of the law-and-economics movement were consistent with the intentions of the framers and with a principled approach to constitutional interpretation."

The fact that about half of the 40,000 lawyers and legal scholars in the Federalist Society adopt a libertarian approach is largely due to Bernie Siegan's influence. The Pacific Legal Foundation, Institute for Justice and Mountain States Legal Foundation, which undertake litigation on behalf of property rights and personal freedom, got much of their intellectual underpinning from Bernie Siegan.

As Richard Epstein said to me by phone, "he should be remembered for a blessing."

Farewell, old friend. It was a privilege to know you.

March 31, 2006

Alan Bock [send him mail] is Senior Essayist at the Orange County Register. He is the author of Ambush at Ruby Ridge and Waiting to Inhale: The Politics of Medical Marijuana.