Inventing the Classical Constitution

• Author: Herbert Hovenkamp
• Position: Ben V. & Dorothy Willie Professor of Law, University of Iowa
• Pages: 1-53

Inventing the Classical Constitution Herbert Hovenkamp * I. INTRODUCTION ................................................................................. 1 II. THE HISTORICAL CONSTITUTION ..................................................... 7 III. THE ORIGINS OF THE CLASSICAL CONSTITUTION ........................... 12 A. T HE C OMMERCE C LAUSE FROM M ARSHALL TO T ANEY ................ 14 B. T HE C ONTRACT C LAUSE AND THE I NVENTION OF THE L EGISLATIVE C APTURE D OCTRINE .............................................. 19 C. T HE “P UBLIC P URPOSE ” D OCTRINE : F EDERAL AND S TATE ............ 27 D. C ONSEQUENTIAL L OSSES FROM E CONOMIC D EVELOPMENT : T HE R ISE OF I NVERSE C ONDEMNATION ....................................... 30 1. “Public Use” ..................................................................... 31 2. Inverse Condemnation ................................................... 37 IV. THE SOCIAL CONTRACT .................................................................. 40 V. CONCLUSION .................................................................................. 52 I. INTRODUCTION Libertarian and some conservative writers have pined for return to a “classical” understanding of U.S. constitutions, particularly the Federal Constitution. 1 “Classical” does not necessarily mean “originalist” or strictly * Professor of Law and History, University of Iowa. Thanks to Steven J. Burton, Thomas P. Gallanis, Todd Pettys, and Jason Rantanen for commenting on a draft. 1. E.g. , DAVID N. MAYER, LIBERTY OF CONTRACT: REDISCOVERING A LOST CONSTITUTIONAL RIGHT (2011); THOMAS R. POPE, SOCIAL CONTRACT THEORY IN AMERICAN JURISPRUDENCE: TOO MUCH LIBERTY AND TOO MUCH AUTHORITY (2013); TIMOTHY SANDEFUR, THE CONSCIENCE OF THE CONSTITUTION: THE DECLARATION OF INDEPENDENCE AND THE RIGHT TO LIBERTY (2014); Steven G. Calabresi, On Liberty, Equality, and the Constitution: A Review of Richard A. Epstein’s The Classical Liberal Constitution, 8 N.Y.U. J.L. & LIBERTY 839 (2014); Steven Menashi & Douglas H. Ginsburg, Rational Basis with Economic Bite , 8 N.Y.U. J.L. & LIBERTY 1055 (2014); Ilya Somin, Libertarianism and Originalism in The Classical Liberal Constitution, 8 N.Y.U. J.L. & LIBERTY 1045 (2014); Richard E. Wagner, Richard Epstein’s The Classical Liberal Constitution : A Public Choice Refraction , 8 N.Y.U. 2 IOWA LAW REVIEW [Vol. 101:1 textualist. Some classical views, such as the attempt to revitalize Lochner -style economic due process, 2 find little support in the isolated text of the Federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. While the text is important, classical liberalism becomes the essential framework through which the Constitution is interpreted. 3 That might make sense if classical liberalism were the framework within which the Constitution was written, but it was not. The classical Constitution is sometimes said to rest on a constructed social contract to which everyone in some initial position agreed. As is true of any contract, it would make every participant a winner. 4 The participants have “rights of liberty and property antecedent to the state,” but choose to give up as little of these as needed to empower government. 5 Because insisting on either unanimous consent or individual voter participation on every issue is impractical and unwise, republican representative government comes into existence. But then it is essential that this government act consistently with the social contract and not be captured by special interests. This classical theory applies to both “macro” concerns, such as state policy toward economic development or welfare, and also to “micro” concerns, including liberty of private contract, strong rights in both conventional and intellectual property, and the right to engage in business with no more than the essential minimum of State oversight. Finally, it tends toward libertarianism on questions of noneconomic individual rights, as long as their exercise does not harm others excessively. 6 The foundational sources claimed for the classical Constitution include: Locke’s writings on government; the political thought of Hobbes, Hume, and Montesquieu; the Federalist , in particular James Madison’s Federalist No. 10 ; and the Anti - Federalist . 7 Important collateral influences include Blackstone’s J.L. & LIBERTY 961 (2014). For an older work, see JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962). 2. See, e.g. , DAVID E. BERNSTEIN, REHABILITATING L OCHNER : DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM (2011). See generally Lochner v. New York, 198 U.S. 45 (1905). 3. See RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL CONSTITUTION: THE UNCERTAIN QUEST FOR LIMITED GOVERNMENT 45–71 (2014); see also id. at 53 (“In its enduring provisions, our Constitution is most emphatically a classical liberal document.”). 4. Id. at 20 (“The grand social contract . . . at every stage . . . is meant to produce the same win/win outcomes, just like ordinary contracts . . . .”). 5 . Id. at 7. 6 . See HERBERT HOVENKAMP, THE OPENING OF AMERICAN LAW: NEOCLASSICAL LEGAL THOUGHT, 1870–1970, at 243–62 (2015). 7 . See, e.g. , EPSTEIN, supra note 3, at 3 (referring to the works of Hobbes, Locke, Montesquieu, and Hume); see also CHARLES DE MONTESQUIEU, THE SPIRIT OF LAWS (1748); THE FEDERALIST NO. 10 (James Madison, Nov. 22, 1787); THOMAS HOBBES, LEVIATHAN (1651); DAVID HUME, Of the Original Contract , in ESSAYS: MORAL, POLITICAL, AND LITERARY 465 (Eugene F. Miller ed., Liberty Fund rev. ed. 1987); JOHN LOCKE, TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION (Ian Shapiro ed., Yale Univ. Press 2003) (1690). 2015] INVENTING THE CLASSICAL CONSTITUTION 3 conception of the centrality of the common law, 8 as well as Adam Smith’s views about the importance of the free market over government interference. 9 Markets have an esteemed place in the classical Constitution. They come closer than any institution to realizing the social contract’s ideal, namely, the movement of resources only by the consent of all affected parties. The resulting constitutionalism is wary of legislation as excessively vulnerable to special-interest capture, suspicious of non-unanimous direct democracy tools, such as initiatives and referenda, because of their propensity to disrespect individual rights, 10 and severely critical of most forms of economic regulation, including protective labor legislation. With this distrust of legislation comes a reliance on judges to get the right answer by applying classical liberal principles, striking down statutes as unconstitutional even when the court’s mandate is not explicitly stated in any constitutional language. Today the most common foil for classical liberal constitutionalism is the “progressive” constitution. For example, Richard Epstein writes of a “Progressive Response” that vanquished a classical liberal constitutionalism that he believes was dominant for roughly 150 years. 11 This progressive synthesis replaced classicism with broad judicial deference to legislatures on matters of economic regulation, typically under rational basis or other comparatively weak tests. Progressive constitutionalism also favors or is at least benign toward state involvement in the redistribution of wealth, guarantees of entitlements, and economic regulation of markets. It tolerates the use of regulatory agencies to extend executive power into areas traditionally within the scope of the Federal Constitution’s Article I’s legislative power or Article III’s judicial power. 12 In the 1970s, both centrist and more left-leaning legal historians began to argue that “classical legal thought” dominated American legal theory from the mid-1800s to the early 1900s, but gradually gave way to “progressive legal thought.” 13 This writing produced a paradigm for thinking about the history 8. See EPSTEIN, supra note 3, at 84, 318, 323. See generally WILLIAM BLACKSTONE, COMMENTARIES. 9. See EPSTEIN, supra note 3, at 150, 582. See generally ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS (Edwin Cannon ed., Methuen & Co. 5th ed. 1904) (1776). 10 . EPSTEIN, supra note 3, at 25, 137. 11. Id. at 34; see also David E. Bernstein, From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law , 89 NOTRE DAME L. REV. 2029, 2029 n.1 (2014) (referring to “post- Lochner , pre-New Deal opponents of liberty of contract, and other preNew Deal proponents of government activism, as ‘Progressives’”). 12. EPSTEIN, supra note 3, at 55. 13. See, e.g. , MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870–1960: THE CRISIS OF LEGAL ORTHODOXY 9–63 (1992); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW, 1836–1937 (1991). Prior to 1980, a widely circulated unpublished book manuscript by Duncan Kennedy developed the term. It was eventually published as DUNCAN 4 IOWA LAW REVIEW [Vol. 101:1 of elite legal thought in the United States that dominates to this day. It created the impression that “progressives” developed a new approach to legal thought, while conservatives clung to historical classicism. This paradigm has been used both by defenders of progressive legal theory and by those who defend the classical position while decrying the progressive revolution. 14 While these historians were correct about the relatively late arrival of classical legal thought, in other respects they seriously overstated their case. The developers of the progressive model created a false image of reaction, or of conservatives who resisted legal change by clinging to classical ideology. In fact, conservatives and moderates during the late 19th and early 20th centuries were just as revisionist as the people we style “progressives,” although the conservatives’ and moderates’...