Leef laments loss of key constitutional provision

George Leef’s latest Forbes column focuses on liberal judges’ role in helping to kill an important protection within the U.S. Constitution.

Americans 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 Contract Clause was clearly prompted by the sour experience with state debt relief laws during the Post-Revolution Era. It was grounded in the premise that honoring contractual commitments served the public interest by encouraging commerce.”

Unfortunately, like several other key constitutional provisions, the Contract Clause eventually fell victim to judicial interpretations that, by the latter stages of the New Deal, rendered it almost a dead letter. Ely’s book gives the reader a fascinating account of the “roller-coaster ride” of this clause.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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