Rediscovering the Classical Liberal Constitution: A Reply to Professor Hovenkamp

Author:Richard A. Epstein
Position:Laurence A. Tisch Professor of Law at New York University School of Law
Pages:55-90
 
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Rediscovering the Classical Liberal
Constitution: A Reply to Professor
Hovenkamp
Richard A. Epstein*
I. DISCOVERING THE CLASSICAL LIBERAL CONSTITUTION:
HISTORICAL AND ANALYTICAL FOUNDATIONS ................................ 57
II. THE COMMERCE CLAUSE ................................................................ 65
III. THE CONTRACT CLAUSE AND LEGISLATIVE CAPTURE ..................... 72
IV. PUBLIC USE AND PUBLIC PURPOSE ................................................. 80
V. INVERSE CONDEMNATION AND PHYSICAL TAKINGS. ........................ 83
VI. CONCLUSION .................................................................................. 90
I am very grateful to the editors of the Iowa Law Review for giving me the
opportunity to respond to Herbert Hovenkamp’s extended and thoughtful
article Inventing the Classical Constitution, which has as one of its major topics a
critical examination of my book of not quite the same name, The Classical
Liberal Constitution: The Uncertain Quest for Limited Government, which was
published in 2014. His title omits the word “liberal” and unavoidably works at
cross-purposes with my book. In one sense, it should be evident that Professor
Hovenkamp is a master of 19th-century sources, both federal and state, and
both academic and political. If I had had the benefit of reading his article
before I published my book, it would have been even longer than its nearly
700 pages. It would be foolish for me to battle with Professor Hovenkamp on
the fine points of historiography. But it is important that I express my strong
reservations about much of the analytical structure on which his critique rests.
There is a powerful difference between a “classical Constitution” that has no
* Laurence A. Tisch Professor of Law, New York University School of Law; Pet er and
Kirsten Bedford Senior Fellow, The Hoover Institution; James Parker Hall Distinguished Service
Professor of Law Emeritus and Senior Lecturer, The University of Chicago. Dennis Hutchinson
and Robert Miller supplied valuable comments on an earlier draft of this Article. My thanks also
to Julia Haines, University of Chicago, class of 2017 for her valuable research assistance.
56 IOWA LAW REVIEW [Vol. 101:55
clear linkage to political theory and a classical liberal Constitution, which
speaks not only of the time of its adoption but also to the structure of its
argument.
To highlight my disagreements with Hovenkamp, it is helpful to follow,
with one deviation, the course of action that Hovenkamp sets out in his
critique. He begins with a discussion of the origins of the historical
Constitution, and ends with a more theoretical discussion of the limitations
of the ideal of a social compact theory. As these two elements seem to be
heavily interdependent, I shall talk about them together. Once those
fundamental questions are addressed, I shall then turn to his specific claims,
all of which revolve around the assertion that the Constitution picked up its
classical liberal patina only somewhere during the course of the 19th century,
long after the Founders had passed from this earth. In making this argument,
Hovenkamp first examines several key clauses that are relevant both to the
federal structure and to the strong protection of property and contract rights
that lie at the heart of the classical liberal ideal. His discussion of federalism
centers on the evolution of the Commerce Clause in the antebellum period.
Next, he examines the Contract Clause in relationship to the problem of
faction and legislative capture. Third, he looks at the public purpose doctrine
as it applies to takings and taxation at both the state and federal levels. And
last, he deals with a somewhat diffuse category of consequential losses from
economic development, which are always with us no matter what we do. In all
of these areas, he concludes that the classical liberal Constitution came at least
two generations after the Founding period, starting with the Jackson
presidency of 1829 to 1837.
My bottom line is that his work adds greatly to our understanding of the
doctrinal ebbs and flows during the 19th century. Yet at the same time, he
largely ignores the parallel doctrinal developments in the Progressive Era,
which ran roughly from 1900 up to the election of Franklin D. Roosevelt in
1932. In addition, he makes an assertion, which I could never claim for myself,
namely that he writes “here as a legal historian and (as best I can) take no
position on substantive questions of political ideology or constitutional
interpretation.”1 But ending his historical inquiry early on, he does not offer
any close reading of the New Deal cases that transformed constitutional
doctrine as it extended from the Founding period to the tumultuous October
1936 term of the Supreme Court. In that sense our two projects work at cross-
purposes with each other. He seeks to decompose historical evolution prior
to the New Deal revolution. I largely ignore the 19th-century crosscurrents on
these critical topics in order to concentrate on the epochal differences that
mark the transition between two contrasting eras. But now that he raises the
chal lenge, I h ope to s how that, writ lar ge, the classical liberal label adequately
captures the entire period and not just the Jacksonian movement (about
1. Herbert Hovenkamp, Inventing the Classical Constitution, 101 IOWA L. REV. 1, 4 (2015).
2015] REDISCOVERING THE CLASSICAL CONSTITUTION 57
which I said nothing in The Classical Liberal Constitution) with its strong, and
often-misguided anti-monopoly program.2 My basic thesis holds true, I
believe, not only about the particular provisions Hovenkamp addresses, but
also about the overall enterprise of constitutional theory and interpretation,
a point to which he, by design, devotes virtually no attention.
I. DISCOVERING THE CLASSICAL LIBERAL CONSTITUTION: HISTORICAL AND
ANALYTICAL FOUNDATIONS
My disagreements with Hovenkamp begin with the title to his article,
Inventing the Classical Constitution. My first objection is with his choice of terms.
An “invention” connotes, as in patent law, the creation of some new device or
substance that did not exist prior to its creation.3 But in this instance, his
chosen term puts the wrong spin on the relevant historiography. The second
disagreement concerns the omission of the term “liberal” in describing a
classical Constitution, without which it is impossible to set the institutional
and analytical questions aright. There is a literal sense in which the term
“classical liberal” cannot apply to the Founding Period or any of its intellectual
antecedents. The term “classical liberal” was invented by later thinkers to
describe an earlier movement that at one time traveled under the banner of
liberal, as opposed to Tory. The term described those who thought that sound
state craft required a limited government that devoted itself to the protection
of individual rights of property, of contract, and, of course, of conscience and
association. As Michael McConnell put it: “The classical liberal tradition
emphasizes limited government, checks and balances, and strong protection
of individual rights.”4
That tradition—and no tradition is defined as a single point in time—
rests on all the usual suspects, including most notably the lawyers Edward
Coke and William Blackstone;5 the political philosophers Thomas Hobbes,6
2. Id. at 4–6.
3. See 35 U.S.C. § 101 (2012).
4. Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and
Originalism?, 119 HARV. L. REV. 2387, 2391 (2006) (reviewing STEPHEN BREYER, ACTIVE LIBERTY:
INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005)). Even the title of Justice Breyer’s book
is incorrect. Our Constitution was conceived as republican, in opposition to democratic, where
the former involved a complex system of divided authority, and the latter a simple system of
majority rule, which vastly increased the risk of faction. The point is evident from the number of
places in the Constitution where specific powers are given to the l egislature and not to the public,
most notably in the indirect election of senators and in setting the time, place, and manner rules
for elections. The Guarantee Clause, moreover, provides that “[t]he United States shall guarantee
to every State in this Union a Republican Form of Government.” U.S. CONST. art. IV, § 4. The
stark opposition between republican and democratic did not survive the 1800 election battle
between John Adams and Thomas Jefferson, when they were hopelessly muddled.
5. See WILLIAM BLACKSTONE, COMMENTARIES.
6. See THOMAS HOBBES, LEVIATHAN (1651).

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