Inventing the Classical Constitution

Author:Herbert Hovenkamp
Position:Ben V. & Dorothy Willie Professor of Law, University of Iowa
Pages:1-53
 
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Inventing the Classical Constitution
Herbert Hovenkamp*
I. INTRODUCTION ................................................................................. 1
II. THE HISTORICAL CONSTITUTION ..................................................... 7
III. THE ORIGINS OF THE CLASSICAL CONSTITUTION ........................... 12
A. THE COMMERCE CLAUSE FROM MARSHALL TO TANEY ................ 14
B. THE CONTRACT CLAUSE AND THE INVENTION OF THE
LEGISLATIVE CAPTURE DOCTRINE .............................................. 19
C. THE “PUBLIC PURPOSE DOCTRINE: FEDERAL AND STATE............ 27
D. CONSEQUENTIAL LOSSES FROM ECONOMIC DEVELOPMENT:
THE RISE OF INVERSE CONDEMNATION ....................................... 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 Con stitution, 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 con tract to which everyo ne 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 LOCHNER: 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 pr ovisions, our
Constitution is most emphatically a classical liberal document.”).
4. Id. at 20 (“The grand social contract . . . at every stage . . . is meant to produc e 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 pre-
New 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

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