New from the University Press of Kansas:
The Contract Clause: A Constitutional History (Oct. 2016), by
James W. Ely, Jr. (Vanderbilt University). A description from the Press:
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superseded the economic rights of individuals.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.
A few blurbs:
"Students of the modern Constitution pay little attention to the
Contract Clause, yet for more than 150 years it was one of the most
litigated issues before American courts. James Ely has done a masterful
job in not only analyzing the development of Contract Clause
jurisprudence, but does so in a way that will be understandable by lay
persons as well as scholars. This will be the definitive book on this
subject for many years to come."—Melvin I. Urofsky
"Professor
Ely has indeed written the ‘definitive history’ of the clause that once
was the Constitution’s most prolific source of litigation. It will
immediately become the indispensable text, superseding Benjamin F.
Wright’s classic but outdated study. With his unrivaled mastery of case
law and legal scholarship, Ely has crafted a work that in telling the
particular story of the contract clause is also a probing examination of
constitutional law’s elusive quest to draw the line between
governmental regulation and the free pursuit of economic activity."—Charles F. Hobson
More information is available
here.
