The Corner

Law & the Courts

The Supreme Court Has a Chance to Revive the Contract Clause

(Jonathan Ernst/Reuters)

For decades, the Court has allowed the Constitution’s contract clause (in Article I, Section 10, along with other things the states aren’t allowed to do) atrophy. It reads “No state shall enact any law impairing the obligation of contracts” and was meant to help stabilize the national economy at a time when the states often passed laws that rewrote or erased contracts to benefit certain parties or themselves.

John Marshall thought it one of the most important clauses in the Constitution and insisted that it was to be enforced as written, not “interpreted.” Unfortunately, that’s just what the Court began to do during the New Deal. Today we have a multi-part “balancing test” that lets states get away with contractual meddling if they can suggest some reason for doing so.

The good news is that the Court is about to hear arguments in a case that could revive the Originalist view of the contract clause. I write about that case in my latest article for Forbes.

George Leef — George Leef is the director of research for the John William Pope Center for Higher Education Policy.

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