As a prism refracts light, bending its rays in different directions and revealing its many colors, the Constitution also refracts the myriad perceptions of its interpreters. The debate published last fall in the Iowa Law Review between Professors Herbert Hovenkamp and Richard Epstein over whether the Constitution is, in the words of Professor Epstein, “a classical liberal document,” reveals divergent perspectives about the role of history in constitutional interpretation. Professor Epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how modern constitutional law has deviated from what he considers the classical liberal origins of the Constitution. In contrast, Professor Hovenkamp is a historian whose extensive research about nineteenth-century property law informs his understanding of constitutional development. Less concerned with devising a unified theory of constitutional interpretation than with detecting the patterns of change, he offers a nuanced and historically detailed rebuttal of the notion of a classical liberal constitution. Interestingly, although Professor Hovenkamp is also an expert on antitrust law, he refrains from assessing the Constitution through the law and economics matrix, perhaps because the strength of his historical instincts outweighs the temptation to regard the Constitution from any singular theoretical viewpoint. Of the two perspectives, I find Professor Hovenkamp’s more persuasive, in large part because, notwithstanding Professor Epstein’s ambitious and intriguing thesis, both the limitations of constitutional theory in general and some specific historical problems raised by the classical liberal premise suggest its inherent flaws.
Samuel Olken, The Refracted Constitution: Classical Liberalism and the Lessons of History, 101 Iowa L. Rev. Online 97 (2016)