ABSTRACT
The Contract Clause occupies a unique position in our constitutional jurisprudence. Its language sweeps broadly and the Marshall Court used it like a bludgeon to limit the power of overzealous state governments. But much has changed since the Founding. The end of the Lochner era rendered the Contract Clause all but a dead letter. But much has changed since then too. With a renewed focus on ‘history and tradition’, there is a strong case to revisit our Contract Clause jurisprudence. In the first complete fifty-state survey of state court constitutions on this issue, this Article proposes that the original understanding of the Contract Clause was correct. This Article proposes that – rather than overturning nearly 100 years of jurisprudence in one swoop – the Supreme Court should adopt an incrementalist approach to bring the Contract Clause in line with its history and tradition. In doing so, it offers the tiers of scrutiny as a transitory mechanism to harmonize jurisprudence that has otherwise been left by the wayside. It concludes by defending this transitory approach as a comparatively better mechanism than the Roberts Court’s more recent approach in overturning precedent.
Brahin, Leonard C, Contract Rights after Lochner: The Clause that Time Forgot (August 19, 2024), 47 Western New England Law Review (2025), Forthcoming.
Leave a Reply