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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 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...