Free Republic

In the first century or so of our national existence, one of the Constitution’s provisions that was most often at issue was the Contract Clause. But following New Deal era decisions that eviscerated it, hardly any cases have since centered on it. The clause has been so forgotten that few Americans even know it’s there, in Article I, Section 10, reading, “No state shall pass any law impairing the obligation of contracts.” The Constitution’s drafters had good reason to include that language, meant to assure people that contracts would be inviolate. During the years under the Articles of Confederation, the...

mericans who have read our Constitution might recall the words saying that state governments may not “impair the obligation of contracts.” Yet they frequently rewrite or dissolve contracts when doing so is “good politics” – demanding that employers pay current workers more money or face punishment, for example. Once a star in the Constitution’s plan for liberty and limited state power, the Contract Clause is now almost completely forgotten. Vanderbilt Law School professor James W. Ely, Jr. tells that unhappy story in his book The Contract Clause: A Constitutional History. “Inserted into the Constitution without extensive debate,” Ely writes, “the...