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Home > School of Law > Student > Law Review > Vol. 47 > Iss. 2 (2025)

 

Western New England Law Review

Abstract

The Contract Clause occupies a unique position in our constitutional jurisprudence. Its language sweeps broadly and the Marshall Court wielded it like a bludgeon, curtailing the power of overzealous state governments. But this sweeping power was curbed as the end of the Lochner era rendered the Contract Clause all but a dead letter.

Rendered inert for years by atextual interpretations, the rise of textualism and “history and tradition” offers new hope to impaired contractors. Building on this momentum, this Article conducts the first, complete fifty-state survey of state court constitutions and proposes that the Marshall Court’s original understanding of the Contract Clause was correct.

Rather than endorse a climatic repudiation of nearly 100 years of jurisprudence in one swoop, this Article seeks an incrementalist approach to bring the Contract Clause in line with its history and tradition: it offers the tiers of scrutiny as a transitory mechanism to harmonize jurisprudence that has otherwise been left by the wayside.

This Article contends that by endorsing a transitory approach to non­originalist Contract Clause precedent, the Supreme Court can ensure a more durable mechanism for effectuating results consonant with history and tradition. In doing so, the Court can preserve its legitimacy while upholding the constitutional principles it values.

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