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Abstract:
This essay examines the origins and early construction of the contract clause of the Constitution. It points out that the contract clause must be understood in the context of the troubled economic circumstances of post-Revolutionary America. The clause, which was little debated at the Philadelphia convention, can be traced to language in the Northwest Ordinance of 1787. This paper focuses on the contested issue of whether the framers intended the clause to cover only contracts between private parties or to extend to public contracts between states and individuals. As asserted by the Progressive historians, it has long been the dominant position among scholars that Chief Justice John Marshall expanded the meaning of the contract clause when he ruled that the provision governed private contracts. This paper disputes that conventional wisdom and argues that the clause could fairly be construed to safeguard both public and private contracts from state abridgement. It gives attention to discussion at the state ratifying conventions as well as to the views of prominent members of the constitutional convention. The paper also considers pre-Marshall court cases that examined the meaning of the contract clause and the famous 1796 opinion letter by Alexander Hamilton. Although recognizing that it is difficult to establish a collective state of mind concerning the scope of the ban against contractual impairments, the paper concludes that there was ample support for the views later endorsed by the Marshall Court concerning the reach of this provision.

contract clause, economic rights

Abstract:
This essay examines the waxing support for the ideology and practice of economic liberty in the founding era. It points out that Americans of the late 18th century increasingly challenged British trade restrictions as well as long-accepted governmental regulation of the economy, raising both practical and philosophical objections. The paper considers various aspects of the colonial economy, including wage controls, regulations governing the price of bread and meat, the establishment of public markets, changes in land and inheritance laws, land speculation, and the growth of contracting in a market economy. It also probes the impact of the Revolutionary War on the emerging commitment to a free market. The paper then links the growing acceptance of economic liberty to the framing of state and federal constitutions. Although recognizing that the United States Constitution does not embody a particular economic theory, the paper concludes that the framers envisioned a substantially free market economy based on private property with a large measure of economic liberty for individuals to pursue their own interests.

: contract clause, economic liberty, land speculation, mercantilism, price regulations, property rights, public markets, wage controls

Abstract:
This essay examines the impact of the scholarship of Professor Richard A. Epstein in the debate over the constitutional protection of property rights. It suggests that Epstein has had little direct impact on judicial decisions pertaining to property rights, but that he has had significant influence in changing the terms of debate over the place of property in the constitutional order. The essay points out that Professor Epstein's influence extends far beyond the academy and has helped to trigger a national dialogue over the rights of owners.

Abstract:
This essay examines the origins and development of the right to pursue lawful trades throughout the nineteenth century. It stresses the importance of natural law theory in the Early Republic and notes that natural law concepts were increasingly tied with the concept of due process of law. The paper traces the origins of the right to pursue lawful callings to Revolutionary state constitutions which asserted an inherent right to acquire and possess property. A number of these early state constitutions similarly banned grants of monopoly. The emerging right to pursue ordinary avocations was necessary to provide a practical means by which one could obtain property. These early notions of a right to work at lawful trades was reinforced by the "free labor" ideology of the Civil War era. As is well known, Justices Stephen J. Field and Joseph P. Bradley strongly articulated the right to pursue a calling in their dissenting opinions in the Slaughterhouse cases. Eventually this right was viewed as an aspect of liberty which the Fourteenth Amendment was designed to protect against state abridgement. The right to pursue a calling, moreover, steadily gained judicial solicitude at the state level toward the end of the nineteenth century. The essay further suggests that the growth of freedom of contract as a constitutional right was closely linked to the right to pursue ordinary trades. The essay concludes by asserting that the right to purse lawful callings and make contracts was an offshoot of the right to acquire property. It also contends that the recognition of these unenumerated economic rights was congruent with the entrepreneurial ethic of the Gilded Age. Finally, the essay takes exception to the Progressive historiography and argues that by defending the right to pursue a calling and to make contracts courts were seeking to safeguard fundamental rights of individuals, not assist large corporations.

economic rights, unenumerated rights, property rights, right to pursue lawful trades, liberty of contract

Abstract:
This essay contrasts two constitutional provisions that were employed during the nineteenth and early twentieth centuries to protect contractual obligations from legislative interference. It explores why the contract clause, once among the most important provisions of the Constitution, gradually eroded in the late nineteenth century and was eclipsed by the liberty of contract doctrine under the due process clause of the Fourteenth Amendment. The essay suggests that a possible explanation may be found in the growing commitment to economic liberty which stressed freedom to enter contracts and was concerned about the extent to which the public law branch of the contract clause shielded business enterprise from competition. It further points out that courts gave only modest protection to contracts under either the contract clause or the liberty of contract doctrine.

Lochner, liberty of contract, due process, contract clause, Fourteenth Amendment

Abstract:
It is striking that Justice Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of the Lochner v. New York (1905), one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, anti-trust law, eminent domain, dormant commerce power, and the Eleventh Amendment. He was clearly among the intellectual leaders of the Fuller Court. This paper seeks to take a fresh look at Peckham's career and assess his contributions to constitutional jurisprudence. The paper argues that Peckham, although a champion of economic liberty, was neither a doctrinaire adherent to laissez-faire principles or a one-sided defender of large-scale business interest. Instead, his overriding concern was to protect small, self-sufficient entrepreneurs from both excessive governmental regulation and exploitation by concentrated private power.

Peckham, Rufus W, Peckham, Lochner, liberty of contract, Gilded Age, eminent domain, Fuller Court

Abstract:
This paper examines the legislative and judicial response to the controversial Supreme Court decision in Kelo v. City of New London, which sustained the exercise of eminent domain for economic development purposes by private parties. It maintains that Kelo amounted to an expansive reading of the "public use" requirement that moved beyond existing doctrine. The paper finds little prospect for action at the national level to curb economic development takings. Much of the paper is devoted to an analysis of events at the state level. It takes a close look at the outpouring of state legislation and constitutional amendments adopted in reaction to Kelo, concluding that the efficacy of such measures varies widely from jurisdiction to jurisdiction. A common problem is an open-ended exception for "blight" takings.

State courts have provided a more promising avenue to limit the free-wheeling exercise of eminent domain. Even before Kelo several state supreme courts barred economic development takings. Moreover, two state supreme courts have expressly rejected the reasoning in Kelo. Others have demonstrated greater skepticism about condemnations for economic development or to combat "blight."

To date most post-Kelo reform efforts have not totally shut the door on economic development takings. But Supreme Court decisions sometimes highlight long-ignored issues. One result of Kelo has been heightened public awareness of the need to reign in eminent domain and safeguard the rights of property owners.

Kelo v. City of New London, public use, eminent domain, economic development takings, blight takings, pretextual takings

Abstract:
This paper examines the decline of the contract clause in constitutional jurisprudence. Although the contract clause occupied a key and much-litigated place in constitutional law during the nineteenth century, the Supreme Court never read the clause with literal exactness. Over time the Court began to limit the reach of the contract clause in a number of ways. It early distinguished between contractual rights and the remedy available to enforce such rights. States retained some room to modify enforcement procedures. Thereafter the Court insisted upon strictly construing legislative grants and recognized an inalienable police power to protect the health, safety, and morals of the public. Moreover, the Supreme Court upheld rent control laws and mortgage moratorium measures as valid legislative responses to emergency conditions which trumpted contracts between individuals. In short, the Supreme Court recognized so many exceptions to the contract clause as to virtually read it out of the Constitution. The advent of New Deal constitutionalism in the late 1930s, which downplayed economic rights and affirmed broad regulatory authority, completed the effective destruction of the contract clause. Despite some fleeting interest in revitalizing the clause, and a few decisions enforcing contract clauses in state constitutions, this once-powerful provision remains at the fringe of modern constitutional law. The paper contends that the decline of the contract clause likely reflects a diminished faith in contractual bargaining and competitive markets.

contract clause, contracts, John Marshall, Dartmouth College v. Woodward, Roger B. Taney, police power, publis trust doctrine, rent control, Charles Evans Hughes, George Sutherland, New Deal, mortgage moratoriium, emergency doctrine, corporations, eminent domain