Origins and Development of the Contract Clause

James W. Ely Jr.

Vanderbilt University - Law School

November 1, 2005

Vanderbilt Public Law Research Paper No. 05-36

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.

Number of Pages in PDF File: 38

Keywords: contract clause, economic rights

Open PDF in Browser Download This Paper

Date posted: November 10, 2005  

Suggested Citation

Ely, James W., Origins and Development of the Contract Clause (November 1, 2005). Vanderbilt Public Law Research Paper No. 05-36. Available at SSRN: https://ssrn.com/abstract=839904 or http://dx.doi.org/10.2139/ssrn.839904

Contact Information

James W. Ely Jr. (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States

Feedback to SSRN

Paper statistics
Abstract Views: 2,161
Downloads: 344
Download Rank: 67,317