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  • The Contract Clause: A Constitutional History by James W. Ely
  • Jay Wexler
The Contract Clause: A Constitutional History. By James W. Ely, Jr. (Lawrence, University Press of Kansas, 2016) 384pp. $39.95

If the Constitution were a zoo, what resident animal would the Contract Clause be? The clause, which is found in Article I, section 10 of our founding document, reads: “No state shall . . . pass any . . . Law impairing [End Page 415] the Obligation of Contracts.” It certainly would not be one of the zoo’s star attractions; the Contract Clause is no First Amendment lion or Fourth Amendment tiger. But it is no bat-eared fox (the Letters of Marque Clause?) or Eurasian water shrew (the Third Amendment?) either. Based on reading Ely’s comprehensive history of the Contract Clause, perhaps it would be an animal that used to be a big draw but is now one that visitors might check out at the zoo if they had the time but not necessarily a priority. A tapir or some kind of rare goat?

Ely’s volume is without a doubt the most exhaustive and authoritative modern treatment of the Contract Clause ever presented, a book that constitutional scholars and historians will want to consult whenever they find themselves needing to know nearly anything about the provision. In seven thorough substantive chapters, Ely traces the history of the clause chronologically from its origins in the late eighteenth century through the modern day. He stops along the way to look in detail at how the clause fared when Chief Justices John Marshall and Roger Taney led the Supreme Court, when the nation was recovering from the Civil War, and when President Franklin D. Roosevelt expanded the scope and reach of the federal government during the New Deal. In each of these eras, Ely maps the approach of courts—mostly the U.S. Supreme Court but state and lower federal courts as well—alongside historical events and the shifting tide of public opinion toward such central concerns as the sanctity of contracts, the importance of a private market economy, and the rights and obligations of states to provide for the public welfare of their citizens.

The book is weakest when cataloging, in dry and overly intricate detail, case after case decided by the courts regarding whatever the issue happens to be, and it is strongest when linking the evolution in judicial interpretation of the clause to broader historical currents. Ely persuasively establishes that the Marshall Court’s original strong reading of the clause—including its holding in Dartmouth College v. Woodward (1819) that corporate charters counted as contracts—was linked closely to the widespread belief in the era that “the reliability of agreements were essential . . . in a growing market economy” (14). Similarly, Ely explains how the Court’s weakening of the clause during and after the New Deal era—as exemplified by its 1934 decision in Home Building and Loan Association v. Blaisdell, upholding a Minnesota law providing certain kinds of debt relief to mortgagors—was reflective of the widespread belief of the time that the state should have the authority to address emergency conditions and other social and economic problems. “The principle of governmental noninterference with contracts, a norm expressed in the contract clause,” Ely writes, “was sharply at odds with New Deal constitutionalism” (232).

Will the Contract Clause ever rise to prominence again? Ely hints that it might, suggesting that “[t]alk of its demise is exaggerated” (2). It surely would not be the first long-dormant constitutional clause to make a comeback; consider the recent revival of the Interstate Commerce [End Page 416] Clause or the Second Amendment. One never knows, in other words, when today’s Third Amendment will become tomorrow’s, well, Fourth Amendment. But what Ely has shown in his impressive book is that regardless of the Contract Clause’s future, its past will always be well worth considering. After all, there is nothing wrong with taking a break from the zoo’s eco-celebrities to watch an interesting tapir for a little while, right?

Jay Wexler
Boston University School of Law

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