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Desiccated by Judicial Dereliction

Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce.

Critics have accused the modern Supreme Court of inventing some rights the Framers never intended while ignoring other—express—provisions. Failing to give meaning to clear constitutional text is as great a judicial dereliction as making up bogus constitutional rights.

In his new book, The Contract Clause, Vanderbilt University law school professor James W. Ely, Jr. explores the long and complicated history of the language in Article I, section 10, forbidding the states to enact “any . . . law impairing the obligation of contracts.” Once one of the most litigated provisions in the Constitution, and regarded by some 19th century judges as a vital check on state power, the Contract Clause was largely drained of meaning during the Progressive Era and the Great Depression. The coup de grace was administered in 1934, when the Court upheld a state mortgage-moratorium law in Home Building and Loan Association v. Blaisdell[1].

Is the Contract Clause dead and buried, a casualty of New Deal jurisprudence, as some scholars suggest[2], or can (and should) the moribund provision be resuscitated? Ely’s comprehensive survey, a worthy successor to Benjamin F. Wright’s classic The Contract Clause of the Constitution (1938), describes the interpretation of the clause as a “roller-coaster ride” and leads the reader on a detailed tour of every twist and turn, beginning with its adoption.

Contra Forrest McDonald, who believed that the origin of the Contract Clause “is shrouded with mystery,” Ely convincingly demonstrates that the Framers sought to protect the integrity of contractual exchanges in the nation’s emerging market economy as a reaction to debt-relief laws that some states adopted after the Revolutionary War. Debtors will always outnumber creditors. In a representative democracy, this imbalance inevitably creates political pressure for debt-relief laws (and similar measures, such as the issuance of paper tender and the revocation of bank charters), particularly during economic downturns, undermining confidence in the sanctity of contracts and thereby hampering commerce.

At the Constitutional Convention, the Framers rejected a proposal to adopt the sweeping protection of private contracts contained in the Northwest Ordinance. The clause they wrote, which was adopted without debate, was narrower; it banned retrospective (or “ex post”) interferences with contracts by the states. Despite the objections of some Anti-Federalists, notably Luther Martin of Maryland, to the limitation of state power, the Constitution was ratified without significant controversy regarding the Contract Clause. Many states adopted constitutions containing a contract clause patterned on Article I, section 10.

During the 19th century, as the nation grew, and its economy developed, political demands for various forms of debt-relief collided with the sparse and somewhat cryptic wording of the federal Contract Clause, generating a great volume of litigation. Until permanent federal bankruptcy legislation was enacted in 1898, states were motivated to pass various forms of debt-relief laws, many (but not all) of which were challenged. Under Chief Justice John Marshall (1801-1835), the early Supreme Court interpreted the Contract Clause broadly, to apply to both private and public contracts, a view that the Progressive historian Wright believed was overbroad, but which Ely painstakingly defends. (The issuance by the state of land grants, tax exemptions, and corporate charters are examples of “public contracts.”)

Ely carefully examines not only Supreme Court decisions, but also lower federal court and state court decisions applying the Contract Clause. (Most cases concerning the clause were heard in state court.) Despite Marshall’s bold leadership, Ely’s analysis reveals that other aspects of early Contract Clause jurisprudence were confused, such as what Ely terms the “elusive distinction between contractual rights and remedies.” The role of natural law was similarly murky.

Prior to arriving at the momentous epoch of the 20th century, Ely reviews the tumultuous eras associated with Chief Justice Roger B. Taney (1836-1864), the Civil War and Reconstruction, and the Gilded Age—a period of significant economic growth during which private contracts enjoyed broad constitutional protection by state and federal courts. The rights/remedies dichotomy remained a muddle. In the sphere of public contracts, the Court in Charles River Bridge (1837) held that corporate grants should be strictly construed in favor of the public. The Taney Court built upon the doctrinal foundations that Marshall had laid.

So entrenched was the sanctity of contracts that, following the abolition of slavery, the Supreme Court still enforced the collection of debts for the purchase of slaves. The 1870s, as it turned out, were the high-water mark of the Contract Clause. After that, the mounting conflict between the states’ inherent “police power” and the constitutional protection of contracts grew increasingly pointed. Ely concludes that “cracks began to appear in contract clause jurisprudence as courts sought to deal with novel issues in a complex economy.” Also, as economic regulation moved from the states to the federal government, the Contract Clause—which, again, limits only the states—lost some of its relevance.

Ely emphasizes that “It is essential to differentiate the contract clause from the emerging liberty of contract doctrine,” but the two are related because parties’ (and courts’) reliance on the latter undercut the significance of the former. Ironically, the advent and eventual passing of the Lochner era (1897-1937), based on a non-originalist theory of “substantive due process,” contributed to a weakening of the constitutional guaranties explicitly embodied in the Contract Clause. Both doctrines were doomed by trends culminating with the constitutional law revolution wrought by the New Deal, which Ely discusses in chapter 6. Tellingly, in Pennsylvania Coal Company v. Mahon[3], the Supreme Court majority invalidated the Kohler Act without even mentioning the Contract Clause, upon which the affected coal company heavily relied in making its case.

Ely asks, “How does one account for the gradual withering of the contract clause?” The answer is, by the intellectual ascendency of the Progressive movement. Specifically, he says,

Progressives argued that contracts were merely products of society that could be altered or abolished to serve the needs of society. They challenged the individualistic understanding of contracts and in essence argued that contracts were not deserving of special constitutional protection.

Progressives read the Contract Clause out of the Constitution because it interfered with the ever-expanding power of the state, and socially desirable legislation such as rent control and rate regulation. In a rebuke to the British jurist Henry Sumner Maine[4], Progressive jurists steered American law—which  evolved “from status to contract”—back to status.

As this trend accelerated during the Great Depression, it prompted demands for governmental intervention in the economy such as mortgage-moratorium laws and similar measures. Chief Justice Charles Evans Hughes’s decision for a 5 to 4 majority in Blaisdell declared that emergency conditions justified the exercise of the police power, “notwithstanding interference with contracts.”[5] Hughes’s  opinion, Ely notes, specifically rejected an originalist understanding of the Contract Clause, shunning “the interpretation which the framers, with the conditions and outlook of their time, would have placed upon” the Constitution.[6] Within a decade, FDR’s New Deal justices effectively interred the Contract Clause altogether.

Judicial attitudes rebounded slightly in the late 1970s, in what Ely refers to as “an uncertain Renaissance.” After “decades of neglect,” the Court modestly revived the Contract Clause, albeit with a “jumbled, if not incoherent, standard of review.”[7] While Ely offers little hope that the clause will regain its previous constitutional importance—unlike the Court’s strengthening in recent decades of protections under the Fifth Amendment’s Takings Clause—he closes the book with a review of what state courts have done over the past 30 years under state constitutions.

Some state courts follow the “virtually worthless, ” watered-down federal standard, while others take a more aggressive approach, using the contract clauses of state constitutions to prevent states from reforming public employee retirement benefits—an inauspicious development, and hardly what the Framers had in mind in 1787.

Maintaining the sanctity of contracts was once regarded as essential to individual freedom. In 1829, famed Supreme Court Justice Joseph Story declared that legislative interference with “the obligation and security of contracts” is “in its essence tyranny.” That was then. Judicial attitudes have changed dramatically. The Contract Clause is a masterful—if sobering—post mortem on a once-vital constitutional protection that has been desiccated by judicial dereliction.

[1] 290 U.S. 398 (1934).

[2] Michael S. Greve, The Upside-Down Constitution (Harvard University Press, 2012), p. 143.

[3] 260 U.S. 393 (1922).

[4] Henry Sumner Maine, Ancient Law (1861).

[5] 290 U.S. at 437.

[6] Ibid. at 443.

[7] See, for example, United States Trust Company v. New Jersey, 431 U.S. 1 (1977).

Reader Discussion

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on September 25, 2017 at 14:56:20 pm

If there just weren't so much else to be done, this is a temptation for an excursion into another book.

That is mainly because it concerns "Obligations" in our society (admittedly the Obligation of Contracts), thus what Jacques Barzun noted as the Western trend toward "emancipation" includes emancipation from obligations; and the Obligation of Contracts is not excluded.

Think of all the obligations that have gone "some place else' to dwell.

Think of the transfers of individual and familial obligations to "society" at large, which have led to the acceptance of the Administrative State, and those of Contracts will unsurprisingly become less than sacrosanct.

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R Richard Schweitzer
on September 25, 2017 at 16:38:44 pm

This is another tragic case of wishful thinking by hyper-libertarian zealots, advanced in willful ignorance of history.

Read the Clause in context: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." These are all powers of an independent nation.

Ejusdem generis applies. This was not aimed at contracts for the sale of widgets, but at States cancelling war debts sua sponte. No originalist court--which would have to factor in the commerce and police powers--would read it in the way Ely suggests. Otherwise, contracts for prostitution and sale of cocaine would be enforceable, and no argument could be made against SSM--even in the last century.

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Miss Creant
on September 25, 2017 at 18:09:13 pm

What you say is is on point - but it does not cover ALL points (of contention) the Framers sought to address. There were numerous cases of States voiding, negating and otherwise impairing private contracts - indeed there was almost open rebellion regarding the attempts by some in the Northeast to cancel *PRIVATE* debts.

So let us not allow our own "ideologically" determined reading of text to blind us to an actual "problem" that the *crafters* sought to address.

BTW: I have previously used the Clause itself to argue against some Neo-Confederates claiming that the States were "sovereign nations" - so I am sympathetic to the position you advance. Just ain't complete enough.

The arguments re: cocaine & prostitution is, of course, a throw-away, isn't it. No one disputes that State Police Powers are sufficiently broad to outlaw "some" behavior - or do you?

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gabe
on September 25, 2017 at 18:15:15 pm

Mark:

Interesting piece:

Went back and read some of the briefs for the cases, as well as some previous cases on Contracts. It is a bit of a muddle.
However, what made a greater impression upon me was this:

Going back to Storey and Taney, it is amazing just how readily a Jurist is willing to interject their own policy prescriptions into their decision making. In Charles River, Taney expresses a clear interest in promoting new technologies / bridges, etc. I cannot find any mention of that in the Contract Clause.

Storey on the other hand wants to read in to the original Charles River Charter an *implied* monopoly - which simply is not there. And all this because Storey expressed an interest in providing security to an entrepeneur / future entrepeneurs. I also did not see that in the Contract Clause. either.

Goodness gracious - is this endemic to the Judiciary - OK, don;t answer that!

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gabe
on September 25, 2017 at 20:22:07 pm

BTW:

" These are all powers of an independent nation."

Yes, they are EXCEPT that *THIS* particular independent nation, The United States would NOT have the power to impair the obligation of contracts either. So ejusdem generis aside, what IS it doing in here. If we are herein speaking of only specified limits designed to reinforce the notion that the States were not sovereign *nations*, and the USA itself could not impair contracts, THEN what is the subclause doing in the Article?

Again, I would contend, as did all of our early jurists, to include Marshall, Storey, etc. that it was a further limitation upon state Police Powers AND was clearly intended to limit State's historical proclivity to interfere with contracts - and usually for corrupt financial reasons. Would you deny that State level corruption was a clear and present danger under the Articles. Nobody really believes that, MissC!

You MAY *read* the COTUS that you want - but I ain;t givin ya the history that you want (need?).

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gabe
on September 26, 2017 at 01:39:07 am

gabe: "EXCEPT that *THIS* particular independent nation, The United States would NOT have the power to impair the obligation of contracts either."

Let's say that the Feds decided not to honor your T-bill. Where are you going to go to collect? Are you going to repossess one of their aircraft carriers? Don't think so. :)

Sovereign states walk away from their obligations all the time. And there is no reason why we couldn't. "Debt" is only mentioned three times in COTUS: ln art. l, § 8 (taxing power), § 10, and art. Vl, cl. 1 (assuming the debts of the Confederation). Nothing prevents it. "Full faith and credit" is mentioned only once, and that involves the deference given to acts of other States. Art. lV, § 1.

gabe: "So ejusdem generis aside"

Translated, "l don't LlKE that rule; therefore, it doesn't apply."

Read Section 10 in its entirety. EVERY ONE of those acts are acts which sovereign states can engage in. There is no indication from the text that that passage was intended to shelter private contracts from interference. ln context, it is about war debts. But judges and restraint seldom mix.

gabe: "Again, I would contend, as did all of our early jurists, to include Marshall, Storey, etc. that it was a further limitation upon state Police Powers,..."

Sorry, Kemosabe! Not ALL of our early Justices. That dog won't hunt. "The Dartmouth decision was quite typical of the early Marshall Court's pronouncements. Marshall and Story were in effect writing into the Constitution their own economic, political, and social philosophies." Morgan D. Dowd, Justice Story, the Supreme Court, and the Obligation of Contract, 19 Case Western U. L.Rev. 493, 509 (1968). Marshall was more activist than Earl Warren on a bad day. Dartmouth [17 U.S. 250 (1819)] marked the outer edge of the doctrine at the time:

"In his day, Marshall was not prepared to hold that the States were incapable of regulating all of their internal affairs (for example, civil institutions); and hence he left open the question of the State police power. And while Story was in basic disagreement with Marshall there was little he could do. In Gibbons v. Ogden, Marshall advised the nation that "the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens may enable it to legislate on this subject, [commerce] to a considerable extent. . . ." ld. at 515.

Bottom line, Story was legislating from the bench. But of course, you like it when judicial activism goes YOUR way.

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Miss Creant
on September 26, 2017 at 08:27:37 am

"Translated, “l don’t LlKE that rule; therefore, it doesn’t apply.”

TRANSLATED MissC's way: I don;t like that history. You don;t seem to like it when history doesn't go your way!

And wasn't Gibbon's more concerned with interstate commerce - a power clearly granted to the Federales. I think it is questionable to advance a "throw-away" conciliatory statement by Marshall as the basis for a rather broad claim that States may "impair" contracts - again, another clearly stated prohibition in COTUS.

And yes, as you may have observed, I also thought Story was (attempting to) legislate from the bench.
DON'T they all?

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gabe
on September 26, 2017 at 13:31:47 pm

gabe: "TRANSLATED MissC’s way: I don;t like that history. You don;t seem to like it when history doesn’t go your way!"

l accept the history that hasn't gone through gabe's Furious Spin Cycle™. You have made tendentious claims that do not appear to make any sense, without any support for them. De omnibus dubitandum!

History is often deuced difficult. Read Seth Tillman's amicus brief for an example. (Personally, l am quite the fan of Josh Blackman, and would recommend that you audit his CL course.) There is a risk in reliance on the writings of one or two Framers as an authoritative legislative history.

COTUS was a brilliant piece of drafting. Even its structure has meaning. Section 10 encompasses powers of a sovereign State, which the co-sovereign States agreed to cede. Private contracts within a State should be the sole concern of the States. Your reading of the law doesn't make intrinsic sense; if their purpose was the one you champion, one would expect to find it in Art. lV.

l really don't care what the answer here; in realpolitik, Story seems to have rewritten COTUS in this area, and we are where we are. All l am saying is that, from a purely structural perspective, the better answer was that the Framers had war debts in mind.

gabe: "I think it is questionable to advance a “throw-away” conciliatory statement by Marshall as the basis for a rather broad claim that States may “impair” contracts – again, another clearly stated prohibition in COTUS."

The LR article addressed that surmise directly and capably.

At the end of the day, you have no evidence of which l am aware that will support your claim. ln Philadelphia, Rufus King (MA) asked for a provision that would do what you think the Contract Clause does, and it was shot down. Charles G. Haines, The Role of the Supreme Court in American Government and Politics, 1789-1835 323. Ergo, that wasn't what was intended, but Story and Marshall didn't know that (Madison's notes were not available then).

There is some evidence that this might have been aimed at land grants, as well (lots of corruption there). But a broad application to all private contracts appears to be a stretch, and was when Story tried to go there.

gabe: "DON’T they all?"

Yes. And that is my mega-point.

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Miss Creant
on September 26, 2017 at 19:13:06 pm

MissC:

Very nice rant BUT - AGAIN you seek to willfully deny history. Do you deny that there was much consternation and debate regarding proposed (enacted?) debt relief laws. Are these not contracts between private parties?
Yep, land grant corruption played a large part in the thinking, and it may very well be that king's suggestion was shot down - or was it? Much "crafting" was done by Madison and others outside the Hall AND the fact remains that the "text" is there. If this be tendentious then so is Marshall, Story, et al.

Additionally, let us accept your argument that the Article is clearly intended to limit the sovereignty of the States (one which I agree with, of course). why is the contract Clause not simply a further diminution of State sovereignty that can and ought to be read as a simple restriction upon the Police Power of a once sovereign State?
Hey, if we are limiting State Sovereignty, why not limit its Police Powers - something later assemblages of Black Robed Guardians were not at all hesitant to do? Although as with most everything else from the Robed Ones, they would prefer to place it on a roulette wheel and make their "selective" incorporation. -Ha!

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gabe
on September 26, 2017 at 22:39:45 pm

gabe: "AGAIN you seek to willfully deny history. Do you deny that there was much consternation and debate regarding proposed (enacted?) debt relief laws."

No. However, that problem was solved elsewhere:

"The Congress shall have Power ... To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States" Art. l, § 8, cl. 4.

Under British law, bankrupts were thrown into debtors' prison--which is almost as counterproductive as it is barbaric. States couldn't afford it, and the laws varied widely. Bankruptcy was a strong incentive for people to move West ... and suddenly disappear.

The Framers' solution was a uniform bankruptcy law. As the sovereign, the United States could absolve the bankrupt of debts. The States no longer could, as a matter of law.

More importantly, one of the key terms of the Treaty of Paris (1783) was that both countries agreed not to block creditors from seeking recovery of debts owed to them. Without that provision, South Carolina could bar British creditors from seeking redress in their courts, or simply make the debts disappear.

Read in pari materia, Sections 8 and 10 of COTUS resolved these two issues in a way that honored our treaty obligations, permitting Congress to resolve the issue of bankruptcy protection.

As for modifying contracts in general, there is no evidence l have encountered that would extend protection to mundane contracts for the sale of widgets.

gabe: "why is the contract Clause not simply a further diminution of State sovereignty that can and ought to be read as a simple restriction upon the Police Power of a once sovereign State?"

Apart from the fact that there is no credible evidence that that was what was intended? Taken out of context, you can make the phrase mean any damned thing you want it to mean. You could make it so all-encompassing that it subsumes the 10Am entirely.

The structure of COTUS provides controlling insights into its meaning.

gabe: "Hey, if we are limiting State Sovereignty, why not limit its Police Powers"

Uh, we did. lt's called the 14Am.

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Miss Creant
on September 28, 2017 at 10:14:01 am

Uh, we did HAVE A HISTORY OF PREVENTING INTERFERENCE WITH PRIVATE CONTRACTS:

From the Northwest Ordinance:

"[I]n the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed."

Uh, and I DID know that the 14th limited police powers - but, gee whiz genius, that wasn't passed until 4 and one-half score years AFTER the Contract clause.

And here is a fuller description of the debate / with commentary: (can you imaging SOMEONE / SOMEWHERE actrually disagrees with Little MissC):

The Obligation of Contract Clause thus had its origins in previous national policy by extending to the states a prohibition that was already in effect in the Northwest Territory. In the brief debate that followed, George Mason feared the prohibition would prevent the states from establishing time limits on when actions could be brought on state-issued bonds. James Wilson responded that the clause would prevent "retrospective interferences only," that is, impairment of contracts already made. These comments suggest that the Framers may well have intended to limit states in their impairment of private contracts already made. But the issue is not free from doubt. The words "previously formed" were not carried over to the Obligation of Contract Clause, so that the text reads as though it has some prospective application of uncertain extent. It is therefore conceivable to apply the Obligation of Contract Clause prospectively to allow the passage of statutes of limitations, by thinking of it as a rule that protects against both retroactive and selective impairments of future contracts that would have the effect of shifting the balance of advantage from one contracting party to another.

The twin protections found in Article I, Section 10, prohibited the state from issuing paper money and, to some extent at least, from regulating economic affairs. That one-two combination troubled the Anti-Federalists, who feared that the two clauses operating in tandem would prevent the states from assisting the debtor classes. The states could no longer debase the currency with new issues of paper tender; Luther Martin asserted that the states would no longer be able "to prevent the wealthy creditor and the monied man from totally destroying the poor though even industrious debtor." In response to the Anti-Federalists, James Madison declared in The Federalist No. 44 that the Obligation of Contract Clause was essential to "banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society." Debtor relief was regarded as undermining the long-term stability of commercial expectations.

Support for the Obligation of Contract Clause was found in other quarters. In the South Carolina ratifying convention, Charles Pinckney argued that these two limitations on the states would help cement the union by barring the states from discriminating against out-of-state commercial interests. Edmund Randolph, in the Virginia ratifying convention, declared that the Obligation of Contract Clause was essential to enforcing the provision in the peace treaty with Great Britain guaranteeing private British debts. The Obligation of Contract Clause, therefore, served a double duty: it afforded both a protection to individuals against their states and a limitation on the states that prevented them from intruding on essential federal interests.

The language of the clause reflects these historical concerns and ambiguities. In tone, the clause reads as a stern imperative. Unlike Section 10, Clauses 2 and 3 (which relate to such matters as the imposition of duties on imports and exports), Congress cannot override the prohibition by giving its consent to any state action that violates this provision. The brief terms of the clause, however, cover more than the endless round of debtor-relief statutes the Framers had in mind, for the clause covers all types of contracts, not just debt instruments. The Framers also sought to insulate commercial exchanges from the regulatory power of the state in order to reduce the burdens on interstate commerce, and thus to contribute to the formation of the United States as an extended commercial Republic. But again the correspondence is not perfect, because the Obligation of Contract Clause applies not only to those contracts with interstate connections, but also to all local contracts.

What is clear, however, is that in the antebellum period the Obligation of Contract Clause was the only open-ended federal constitutional guarantee that applied to the states. As such, the Obligation of Contract Clause came by default to be the focal point of litigation for those who sought to protect economic liberties against state intervention. The Supreme Court's interpretation of the clause, both before and after the Civil War, has been filled with odd turns and strange surprises.

Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. That seemed to be the understanding at the Constitutional Convention. But did the Obligation of Contract Clause also reach actions by the state so as to prevent it from repudiating its own contracts, including those that granted legal title of state owned lands to private persons, Fletcher v. Peck (1810), or which sought to revoke state charters for private colleges, Trustees of Dartmouth College v. Woodward (1819)? In both of these cases, Chief Justice John Marshall opted strongly for the broader reading of the clause in order to restrain conduct by government—reneging on grants—that would be regarded as unacceptable if done by any private individual. In this instance, moreover, the broad reach of the Obligation of Contract Clause uneasily coexisted with the principle of sovereign immunity, which Alexander Hamilton had strongly defended in The Federalist Nos. 81 and 82. That principle prevented the state from being sued for breach of its own ordinary commercial contracts. But that immunity did not allow the state to undo its own contracts once their performance was completed. This reading fits so well with the general purpose of limited government that to this day no one has rejected the view that the Obligation of Contract Clause applies to state contracts. But there has been a spirited debate as to how much protection it supplies in light of the doctrine of sovereign immunity. Certainly much is to be said on behalf of the stability of titles to property obtained in grants from the states. But we cannot ignore the reciprocal problem: if the Obligation of Contract Clause is read so broadly so as to invite groups to lobby for sweetheart agreements, reformist governments would not be able to set such agreements aside.

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gabe
on October 02, 2017 at 10:25:22 am

Plagiarism is bad form, gabe ... and plagiarizing the drooling, bat-guano-crazy RW Heritage Foundation's Guide to the Constitution, downright reckless. Let's do the math:

"In the South Carolina ratifying convention, Charles Pinckney argued that these two limitations on the states would help cement the union by barring the states from discriminating against out-of-state commercial interests. Edmund Randolph [sic], in the Virginia ratifying convention, declared that the Obligation of Contract Clause was essential to enforcing the provision in the peace treaty with Great Britain guaranteeing private British debts. The Obligation of Contract Clause, therefore, served a double duty:"

First, the author probably meant Judge Edmund Pendleton, who chaired the VARC. Second, both men (one, a Framer) supported what l am saying: the Clause was there to prevent the States from blowing up the Treaty of Paris. There is nothing in their statements that supports Heritage's tendentious conclusion, but the limits of sober scholarship have never constrained them.

"Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. That seemed to be the understanding at the Constitutional Convention."

This statement is COMPLETELY DEVOlD of scholarly support. No footnotes, no examples. This is the kind of shoddy, intellectually incontinent work we have come to expect from the original authors of Obamacare.

l could go on....

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Miss Creant
on October 02, 2017 at 14:04:34 pm

MissC''
Plagiarism IS bad form. I forgot to bracket everything in quotes - my bad!

You may argue as you like BUT THERE IS THE small MATTER of SCOTUS having taken this view.

However, what I wanted to emphasize was one assertion made in the (un)quoted text and it is one I had intended to provide on my own:

It is this, "What kind of liberty can it be called if every contract, freely entered into by two or more parties may be summarily negated by a govmnt functionary? Would you be prepared to call this *limited* government.

No, it seems to me that the whole thrust of COTUS is to limit guvmnt action. And as the Northwest Ordinance evidences the notion of abrogation of contracts by guvmnt was definitely comtemplated and addressed by the Framers.

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gabe
on October 02, 2017 at 21:19:24 pm

“What kind of liberty can it be called if every contract, freely entered into by two or more parties may be summarily negated by a govmnt functionary?"

Too little regulation is as undesirable as too much.

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Anne Bird
on October 03, 2017 at 20:49:18 pm

C'mon, now, Anne:

How is it that my comment is translated as an argument for no regulation. where did that come from?, seriously!

i refer only to the rightful expectation that contracts freely entered into ought to be respected by the State.
Should the State under it's police powers be able of defining, setting and enforcing restrictions - yep, absotively - but not ex post facto. In no way should this be construed as a plea for the *total* negation of proper administrative / legislative regulation.

Hey, I want my air travel to be subject to rigorous regulation.

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gabe

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