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

55

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).