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James W. Ely Jr., The Contract Clause: A Constitutional History (University Press of Kansas 2016), 376 pp.
Some constitutional mandates wax and wane in importance, depending on the changing passions of the times. Few provisions of the U.S. Constitution have fluctuated more in importance than the Contract Clause. Article I, section 10, provides in part: "No state shall . . . pass any . . . Law impairing the Obligation of Contract." Since 1787, judges, public officials, business leaders, and citizens have debated the meaning of these apparently simple words in the context of a changing American society and economy.
Those interpreting the clause face a dilemma. An overly lenient approach invites the plunder of wealth and erosion of trust in contract promises on which the commitments of investors are predicated. An overly strict approach denies business flexibility and government the ability to deal with emergencies. Is the clause concerned with contract rights, remedies, or both? Does it pertain to government contracts as well as private agreements? Does its prohibition, on its face applicable only to the states, mean that the federal government is free to disregard the contract rights of others in its own promises?
James Ely, a professor emeritus of law and history at Vanderbilt Law School, has written numerous books about American legal history, including his widely praised The Guardian of Every Other Right: A Constitutional History of Property Rights (3d ed. 2008). In The Contract Clause, Prof. Ely does a masterful job in discussing a related aspect of the framers' efforts to ensure liberty and prosperity for their countrymen and posterity. Using a discursive style and measured tone, Ely delves into the motivations and apprehensions of those advocating differing views of the Contract Clause and the analyses employed by federal and state judges in deciding cases.
"I have endeavored," Prof. Ely writes in his introduction, "to place evolving contract clause jurisprudence within the broader context of the legal culture, which values contracts as an expression of individualism and a market economy." He adds that the book "takes account of social, economic, and political developments." The ensuing chapters, which are arranged chronologically by era in American history, fulfill that commitment.
Prof. Ely observes that the clause was inserted into the Constitution without...