Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

This article concentrates on only one of the constitutional provisions that bears on the general topic of economic liberties: the contract clause, which reads: "No State shall .. .pass any . .. Law impairing the Obligation of Contracts . . . ," I wish to defend the proposition that, properly construed, the clause extends substantial protection to economic liberties against legislative, and perhaps judicial, interference. My task in the first part of the article is to explain how and why the Constitution itself commits us to a theory of governance that, to understate the point, leaves to state governments only a very limited control over the economic activities within their jurisdictions. Those who think that the "realities" of modern political life preclude the adoption of such a system of governance may find my argument an idle one. But I think that a reexamination of the first premises of our constitutional system is always in order, and that such an examination can be conducted without any presumption for or against the current status quo. The formulation of a program of implementation can be properly undertaken only after the question of principle has been addressed. Turning to specific applications of the contract clause in Part II, I hope also to show that the internal logic of the clause, like the theory of governance that inspired it, points to a sharp restriction of the power of the individual states to regulate economic affairs.

First Page

703

DOI

https://doi.org/10.2307/1599484

Volume

51

Publication Date

1984

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