Hovenkamp on Inventing the Classical Constitution

Herbert J. Hovenkamp, University of Iowa College of Law, has posted Inventing the Classical Constitution.  Here is the abstract:

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the 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. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would make every participant a winner. The participants have liberty and property rights antecedent to the state, but choose to give up as little of these as needed to empower government. 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 factions, or special interests.

The result is constitutionalism that is wary of legislation as excessively vulnerable to special interest capture, suspicious of non-unanimous direct democracy tools such as initiatives and referenda because they often disrespect individual rights, and severely critical of most forms of economic regulation. With this distrust of legislation comes a reliance on judges to get the right answer, striking down statutes as unconstitutional even when the court's mandate is not explicitly stated in any constitutional language.

This article argues, first, that the Constitution was not classical in its inception. Historically it was "pre-classical," particularly on matters of private contract and property rights and government intervention in the economy. That conclusion is consistent with its text, but even clearer from contemporary perspective, as well as early court interpretation.

Second, a distinctively "classical" perspective on the Constitution came later, as the influence of Adam Smith's Wealth of Nations and his English and American followers filtered through American academies. The adoption of classical views resulted from the Jacksonian movement, which began in the 1820s. It took root in federal constitutional doctrine with Jackson's appointment of Chief Justice Roger B. Taney, an economic liberal. Classical liberal views increasingly influenced both state and federal constitutional thought well into the twentieth century, although state courts interpreting their own constitutions led the way. These included a strong antiregulatory bias favoring private markets, suspicion of monopoly, development of a technical and narrowly focused patent system as an exception to this hostility toward monopoly, legislative capture justifications for judicial review, and a strong view of liberty of contract. As these doctrines expanded, however, constitutional doctrine began to depart more significantly from constitutional texts.

Third, one defining element of classical political theory -- the "social contract" -- never captured an important following in American mainstream constitutional thought, not even during the early national period or the later heyday of constitutional classicism. While judges and constitutional writers sometimes spoke of a social "contract" or "compact," they almost always meant the text of a constitution or some other authoritative document. They rarely advocated for a social contract doctrine that would enable them to jump off the ratified text to some unnamed fundamental principle. Even the academic and judicial architects of economic substantive due process during the Gilded Age and Progressive Era did not typically rely on the social contract idea, and some of them forcefully rejected it.

Fourth, and concluding, the idea that classical constitutional doctrine was displaced by "progressive" constitutionalism is also wrong, or at least wildly exaggerated. The constitutional revolution that occurred during the first four decades of the twentieth century was certainly supported by self-identified "progressives." But support for change was broader and much more centrist, driven by changes in economic theory that today are accepted by liberals and conservatives alike. This makes it impossible to go back.