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Justice Gorsuch Dissents on the Contracts Clause, Cites Mike Rappaport's Student Note
Michael Ramsey

In Sveen v. Melin, decided 8-1 yesterday, Justice Gorsuch filed a solo dissent arguing that the state law at issue was unconstitutional under the original public meaning of the contracts clause.  Here are the key passages:

When it comes to legislation affecting contracts, the Constitution hardens the presumption of prospectivity into a mandate. The Contracts Clause categorically prohibits states from passing “any . . . Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1 (emphasis added). Of course, the framers knew how to impose more nuanced limits on state power. The very section of the Constitution where the Contracts Clause is found permits states to take otherwise unconstitutional action when “absolutely necessary,” if “actually invaded,” or “wit[h] the Consent of Congress.” Cls. 2 and 3. But in the Contracts Clause the framers were absolute. They took the view that treating existing contracts as “inviolable” would benefit society by ensuring that all persons could count on the ability to enforce promises lawfully made to them— even if they or their agreements later prove unpopular with some passing majority. Sturges v. Crowninshield, 4 Wheat. 122, 206 (1819).

The categorical nature of the Contracts Clause was not lost on anyone, either. When some delegates at the Constitutional Convention sought softer language, James Madison acknowledged the “‘inconvenience’” a categorical rule could sometimes entail “‘but thought on the whole it would be overbalanced by the utility of it.’” Kmiec & McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L. Q. 525, 529–530 (1987). During the ratification debates, these competing positions were again amply aired. Antifederalists argued that the proposed Clause would prevent states from passing valuable legislation. Id., at 532–533. Federalists like Madison countered that the rule of law permitted “property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.” Id., at 532. And, of course, the people chose to ratify the Constitution— categorical Clause and all.

For much of its history, this Court construed the Contracts Clause in this light. The Court explained that any legislative deviation from a contract’s obligations, “however minute, or apparently immaterial,” violates the Constitution. Green v. Biddle, 8 Wheat. 1, 84 (1823). “All the commentators, and all the adjudicated cases upon Constitutional Law agree[d] in th[is] fundamental propositio[n].” Winter v. Jones, 10 Ga. 190, 195 (1851). But while absolute in its field, the Clause also left significant room for legislatures to address changing social conditions. States could regulate contractual rights prospectively. Ogden v. Saunders, 12 Wheat. 213, 262 (1827). They could retroactively alter contractual remedies, so long as they did so reasonably. Sturges, supra, at 200. And perhaps they could even alter contracts without “impairing” their obligations if they made the parties whole by paying just compensation. See West River Bridge Co. v. Dix, 6 How. 507, 532–533 (1848); El Paso v. Simmons, 379 U. S. 497, 525 (1965) (Black, J., dissenting). But what they could not is destroy substantive contract rights—the “Obligation of Contracts” that the Clause protects.

More recently, though, the Court has charted a different course. Our modern cases permit a state to “substantial[ly] impai[r]” a contractual obligation in pursuit of “a significant and legitimate public purpose” so long as the impairment is “‘reasonable.’” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 411–412 (1983). That test seems hard to square with the Constitution’s original public meaning. After all, the Constitution does not speak of “substantial” impairments—it bars “any” impairment.  Under a balancing approach, too, how are the people to know today whether their lawful contracts will be enforced tomorrow, or instead undone by a legislative majority with different sympathies? Should we worry that a balancing test risks investing judges with discretion to choose which contracts to enforce—a discretion that might be exercised with an eye to the identity (and popularity) of the parties or contracts at hand? How are judges supposed to balance the often radically incommensurate goods found in contracts and legislation? And does this test risk reducing the “Contract Clause’s protection” to the “Court’s judgment” about the “‘reasonableness’” of the legislation at hand? Simmons, 379 U. S., at 529 (Black, J., dissenting). Many critics have raised serious objections along these and other lines. See, e.g., ibid.; Kmiec & McGinnis, supra, at 552; Rappaport, Note, A Procedural Approach to the Contract Clause, 93 Yale L. J. 918, 918 (1984); Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev 703, 705–717 (1984); J. Ely, The Contract Clause: A Constitutional History 7–29 (2016). They deserve a thoughtful reply, if not in this case then in another.

It's a little surprising to me that Justice Thomas (at least) did not support him on this.

Congratulations to co-blogger Mike Rappaport for the cite to his student note (!) and to Professor James Ely for the cite to his impressive book on the history of the contracts clause, parts of which he presented at the San Diego originalism works-in-progress conference a few years ago.

UPDATE:  John McGinnis comments here: Gorsuch Tries (Unsuccessfully) To Restore the Contract Clause.