The Protection of Contractual Rights: A Tale of Two Constitutional Provisions
In recent years, scholars have done much to enhance our understanding of the constitutional jurisprudence of the late nineteenth century. In so doing, they have called into question the one-sided Progressive historiography, which pictured judges of this era as little more than handmaidens of big business. Although historians writing in the Progressive and New Deal mindset long dominated assessments of judicial behavior in the Gilded Age, revisionist scholars have presented a more balanced portrait of constitutional doctrine in this era. They stress that Gilded Age jurists sought to uphold time-honored principles of limited government and economic freedom in a rapidly changing society. Moreover, revisionist scholars have pointed out that constitutional law of the late nineteenth century was grounded in the views of the Framers of the Constitution and represented continuity with the past.
Further work, however, remains to be done. One intriguing subject is the seeming shift in the constitutional base for protecting contracts from legislative interference. During the nineteenth century, the Contract Clause was one of the most frequently litigated provisions of the Constitution and was often invoked to strike down state laws. In 1896, Justice George Shiras tellingly observed: “No provision of the [C]onstitution of the United States has received more frequent consideration by this [C]ourt than that which provides that no [S]tate shall pass any law impairing the obligation of contracts.” Yet by the late nineteenth century, the Contract Clause began to gradually erode and was eclipsed by the liberty-of-contract doctrine under the Due Process Clause of the Fourteenth Amendment. A 1932 Note in the Columbia Law Review correctly observed: “[T]he last fifty years have witnessed a decline in the importance of the Contract Clause. The limelight has shifted to due process.”
