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The Contract Clause - A Constitutional History (Hardcover)
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The Contract Clause - A Constitutional History (Hardcover)
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Few provisions of the American Constitution have had such a
tumultuous history as the contract clause. Prompted by efforts in a
number of states to interfere with debtor-creditor relationships
after the Revolution, the clause-Article I, Section 10-reads that
no state shall ""pass any. . . Law impairing the Obligation of
Contracts."" Honoring contractual commitments, in the framers'
view, would serve the public interest to encourage commerce and
economic growth. How the contract clause has fared, as chronicled
in this book by James W. Ely, Jr., tells us a great deal about the
shifting concerns and assumptions of Americans. Its history
provides a window on matters central to American constitutional
history, including the protection of economic rights, the growth of
judicial review, and the role of federalism. Under the leadership
of Chief Justice John Marshall, the Supreme Court construed the
provision expansively, and it rapidly became the primary vehicle
for federal judicial review of state legislation before the
adoption of the Fourteenth Amendment. Indeed, the contract clause
was one of the most litigated provisions of the Constitution
throughout the nineteenth century, and its history reflects the
impact of wars, economic distress, and political currents on
reading the Constitution. Ely shows how, over time, the courts
carved out several malleable exceptions to the constitutional
protection of contracts-most notably the notion of an inalienable
police power-thus weakening the contract clause and enhancing state
regulatory authority. His study documents the near-fatal blow dealt
to the provision by New Deal constitutionalism, when the perceived
need for governmental intervention in the economy superseded the
economic rights of individuals. Though the 1970s saw a modest
revival of interest in the contract clause, the criteria for
invoking it remain uncertain. And yet, as state and local
governments try to trim the benefits of public sector employees,
the provision has once again figured prominently in litigation. In
this book, James Ely gives us a timely, analytical lens for
understanding these contemporary challenges, as well as the
critical historical significance of the contract clause.
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