Schultz D. Encyclopedia of the United States Constitution

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Signed copy of the Constitution of the United States (National Archives)

162 Constitutional Convention

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equal, with each having one vote on all matters

in Congress. In the Virginia Plan, everything was

proportionate to population. New Jersey, New

Hampshire, Maryland, Delaware, Connecticut,

and even New York had grave concerns that Mad-

ison’s plan would take equality out of the national

legislature. Also weighing on some minds, partic-

ularly among the New Yorkers, was the belief that

some southern states would soon be approximate

in size to large states such as Pennsylvania.

The plan the small states presented to the con-

vention on June 15 became known as the New

Jersey Plan and was essentially a refutation of

the Virginia Plan. It was, in fact, more along the

lines of what the delegates were originally sent

to Philadelphia to do, that is, draft amendments

to the Articles of Confederation to ensure that

government and country functioned properly. It

expanded national power without totally elimi-

nating the current system, and most important, it

ensured one state, one vote.

The small state plan called for new powers for

the existing congress, including the laying and col-

lecting of taxes, a national executive who would

serve one term and be subject to a recall based on

the request of state governors, a national judiciary,

and the idea that laws passed by the national leg-

islature would take precedence over those passed

by the states. On June 19, the New Jersey Plan was

defeated 7-3, with one state delegation divided.

Prior to the introduction of the New Jersey Plan

on June 11, the delegates had overwhelmingly

agreed that the lower house should be based on

population and elected by the people.

By a 6-5 vote, the delegates had already rejected

a proposal by Roger Sherman supporting popu-

lar representation in the lower house and equal

representation for the state in the upper house.

Once the New Jersey Plan was defeated, the con-

vention spent the rest of June on the compromise

proposal regarding the makeup of the bicameral

legislature. At the end of the month, Oliver

Ellsworth of Connecticut reintroduced Sherman’s

motion. On July 2, that motion was defeated on a

tie vote 5-5-1, and a committee, with one delegate

from each state, was created to develop a compro-

mise on this issue. The committee, led by Elbridge

Gerry of Massachusetts, adopted Sherman’s origi-

nal proposal with the stipulation that money bills

would originate in the lower house and could not

be amended in the upper house. This compromise

was vital to winning delegates such as George

Mason of Virginia, Gerry, and Randolph to whom

the new stipulation corresponded to the principle

of no taxation without popular representation. On

July 16, the convention voted in favor of the Gerry

Committee Plan, also known as the Connecti-

cut Compromise.

Once it was agreed that representation in

the lower house would be based on population,

the next question was whether slaves should be

counted in the population of the southern states.

Most northerners thought because the slaves were

property, they should not be counted for repre-

sentation. Wilson proposed what has become

known as the Three-ﬁ fths Compromise. It pro-

vided that all free persons would be counted as

well as three-fifths of “all other persons.” The

other part of this compromise was that this for-

mula would also be used in ﬁ xing the amount of

money to be raised in each state by any direct tax

levied by Congress.

On July 26, the convention adjourned for 10

days so a committee of ﬁ ve could put into some

form the resolutions that had been approved in

the previous month. On August 6, when the Com-

mittee on Detail presented its product, familiar

names and phrases that are in the Constitution

started to appear. It was this committee who

coined the titles president and speaker as well as

the phrases We the People,

PRIVILEGES AND IMMUNI-

TIES, and necessary and proper. Substantively, the

most important contributions of this committee

were the enumerating of the powers of Congress

for the ﬁ rst time and its dealing with a series of

problems on state governments.

At the end of August, the delegates turned their

attention to the Committee on Detail’s proposal

on the presidency and defeated four different

methods of electing the president. Eventually, the

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delegates selected members to form a committee

to settle outstanding issues. This Committee on

Postponed Matters recommended to the conven-

tion the adoption of an electoral college in

which both the people and the states take part in

the election of the president. The second most sig-

niﬁ cant matter settled by this committee was the

idea that the president must seek the “advice and

consent” of the Senate when selecting members

of the executive departments and the judiciary.

During the last days of the convention, the

Committee on Style took the 23 articles that had

been adopted by the convention and reduced

them to seven. The most important single contri-

bution of this committee was the Preamble to

the Constitution as it exists today, which is

signiﬁ cantly different from the one written by the

Committee on Detail.

There was no bill of rights in this document

because the delegates never considered it their

business to write a bill of rights for the whole

nation. Furthermore, they thought there were suf-

ﬁ cient protections for personal liberty throughout

the text of the document. More practically, adopt-

ing a bill of rights would have added weeks to the

convention.

When the convention convened for its final

day, September 17, 41 of the 55 delegates were in

attendance with 38 of them signing the ﬁ nished

document. Mason, Randolph, and Gerry refused

to endorse the document with their signatures.

Article VII of the Constitution called for the

document to go into effect once the conventions

of nine states had ratified it. New Hampshire

became the ninth state to ratify the Constitution

in June 1788, with Virginia and New York fol-

lowing suit in the next ﬁ ve weeks. In September

1788, the Congress of the Confederation chose

New York City as the temporary capital, and the

new congress convened early in 1789, with Wash-

ington taking the oath of office of president in

April 1789.

For more information: Bowen, Catherine

Drinker. Miracle at Philadelphia. Boston: Little,

Brown, & Co., 1966; Madison, James. Notes of

Debates in the Federal Convention of 1787. Ath-

ens: Ohio University Press, 1966; Rossiter, Clin-

ton. 1787: The Grand Convention. New York:

Macmillan, 1966.

—Mark Alcorn

constitutional interpretation

The power of judicial review raises the question

of how courts should interpret the Constitution.

In his famous lecture on neutral principles,

Professor Herbert Wechsler argued that in order to

justify the exercise of judicial review, judges must

distinguish themselves from political actors by

applying neutral principles to cases. Drawing from

Wechsler, some legal scholars and judges, such as

Justices Antonin Gregory Scalia and Clar-

ence Thomas, have argued that the only legiti-

mate method of interpreting the Constitution is to

examine its text and history, which, in their view,

best reﬂ ects the Constitution’s original meaning.

Others, such as Professor Ronald Dworkin,

contend that courts should interpret the Constitu-

tion in light of the fundamental principles underly-

ing it, particularly when text and history are silent

or equivocal as to a provision’s meaning. Accord-

ing to Dworkin in his 1979 book, Taking Rights

Seriously, it is up to each generation to determine

meaning of the general concepts provided in the

Constitution. Whatever one’s preferred interpre-

tive methodology, however, there is almost univer-

sal agreement, according to constitutional scholar

Philip Bobbitt, that there are six methods (or

modalities) of constitutional interpretation: text,

history, structure, doctrine, ethos, and prudence.

The ﬁ rst method of interpreting the Constitu-

tion, and the most obvious given that it is a writ-

ten document, is to examine the text. A textual

approach to interpretation considers what the lan-

guage of the Constitution means to “a person on

the street.” This “plain meaning” approach asks,

What is the common usage of a particular term or

phrase in a particular context? A textualist does not

consider what the framers intended by their use of

a particular term or phrase, nor does a textualist

consider whether the common meaning of a term

or phrase is wise or prudent. Prior decisions (prec-

edent) interpreting a term or phrase are immaterial

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to the inquiry. A textualist may acknowledge that

the common meaning of a term has changed over

time, but the historical antecedents of a phrase do

not control the inquiry, though they may inform it.

In short, the present-day, plain reading of the text

is paramount under this approach. The opinions

of Justice Hugo Black embody this approach in

cases such as Y

OUNGSTOWN SHEET & TUBE V. SAW-

YER, 343 U.S. 579 (1952), and Adamson v. People

of State of California, 332 U.S. 46 (1947).

History provides a second method of consti-

tutional interpretation. The historical method

focuses on the original understanding of a con-

stitutional provision as reflected in speeches or

writings surrounding the provision’s adoption.

The difﬁ culty with this approach to constitutional

interpretation is that in the absence of a clearer

record of what the framers of the Constitution or

persons voting to adopt it believed, it is difﬁ cult to

interpret authoritatively the Constitution based on

history alone. For this reason, courts often rely on

history to supplement or refute a particular read-

ing of the Constitution derived at through other

modes of interpretation.

Structural arguments are a third method of

constitutional interpretation. Structuralists derive

constitutional meaning from the structure of the

text and the relationship between particular tex-

tual provisions. The theories of separation of pow-

ers, which concerns the allocation of power among

the three branches of the federal government, and

federalism, which concerns the allocation of

power between federal and state governments—

neither of which is expressly mentioned in the text

of the Constitution—have been derived through

structural arguments. Professor Charles Black, Jr.,

a renowned professor of constitutional law, was

one of structuralism’s greatest champions. Two

criticisms of structuralism are, ﬁ rst, the process

of inferring structural rules to be applied in par-

ticular cases is unprincipled, and second, structur-

alism cannot provide a ﬁ rm basis for construing

personal rights but rather is better suited for con-

struing intergovernmental relationships.

Doctrinalism is the fourth method of consti-

tutional interpretation. Over time, courts hear

constitutional cases involving similar factual pat-

terns. In adjudicating these cases, courts develop

doctrines—rules, principles, and standards—that

govern future decisions pursuant to stare decisis,

or precedent (on how the court decided similar

cases in the past). Doctrinal arguments are most

prevalent in areas of constitutional law where

there is no strong textual foundation. In substan-

tive due process cases, for example, the Court

resolves controversies primarily by considering

precedent, as in cases like E

ISENSTADT V. BAIRD,

405 U.S. 438, 453 (1972). The principal criticism

of the doctrinal modality is that because the con-

stitutional text is itself authoritative, the Constitu-

tion does not authorize courts to convert the text

into judicial doctrines. Nevertheless, because the

Constitution speaks in broad terms, many think

that in order to apply the Constitution in a consis-

tent and transparent manner, courts must create

doctrines that govern future cases.

Prudentialism is the ﬁ fth method. Under this

modality, courts consider policy consequences

in interpreting the Constitution. Prudentialism

is based on the premise that the Constitution is

a practical document, not merely an expression

of political philosophy. Justice Robert H. Jack-

son best expressed this premise in T

ERMINIELLO

V. CITY OF CHICAGO, 337 U.S. 1, 37 (1949), when

he claimed that the Constitution is not “a suicide

pact.” Accordingly, courts must consider the costs

and beneﬁ ts of their constitutional decisions. Pru-

dentialism often gives rise to a highly pragmatic

and economic approach to constitutional interpre-

tation, such as the one endorsed by Judge Richard

Posner. While many worry about the broad dis-

cretion courts exercise in weighing costs and ben-

eﬁ ts, prudentialism is nonetheless an oft-applied

modality that has long been part of constitutional

interpretation.

Ethics is the ﬁ nal modality. Courts interpret

the Constitution under this modality by consult-

ing the cultural values expressed in the Constitu-

tion. The most fundamental constitutional value

is the notion that that the government has lim-

ited powers and that ultimate authority therefore

resides in the individual. Ethical arguments are

thus most common when interpreting the Tenth

Amendment, which guarantees states’ rights, and

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the Fourteenth Amendment’s due process

clause, which guarantees substantive individual

liberties. Because ethical arguments are based

on inferences from open-textured language, it is

similar to the structural approach to constitutional

interpretation. A signiﬁ cant difference between

these modalities is that structural arguments infer

rules from powers granted to governments, and

ethical arguments infer rules from powers denied

to governments. Ethical arguments are not to be

confused with moral arguments, which simply

reﬂ ect the moral or political values of the inter-

preter rather than those expressed in the Consti-

tution itself.

In considering these methods of constitutional

interpretation, it is important to remember that

the methods themselves do not necessarily deter-

mine the content of a legitimate constitutional

argument. Ultimately, where one falls on this

issue is inextricably entangled with the recurring

theme in constitutional law of how one conceives

of the relationship between constitutional law and

politics.

For more information: Breyer, Steven. Active

Liberty: Interpreting Our Democratic Constitu-

tion. New York: Vintage Books, 2005; Tribe, Lau-

rence H., and Michael C. Dorf. On Reading the

Constitution. Cambridge, Mass.: Harvard Univer-

sity Press, 1991.

—Jesse R. Merriam and Andre Mura

Constitution in exile

Constitution in exile is a phrase employed by

legal academics in a lively debate over the nature

and legitimacy of constitutional jurisprudence

pertaining to economic regulations—pre– and

post–New Deal. The circumstances surrounding

these debates are somewhat reminiscent of Win-

ston Churchill’s description of Russia as “a riddle

wrapped in a mystery inside an enigma.”

The basic puzzle pertains to the term, itself.

Although agreement exists that it was coined by

federal judge Douglas H. Ginsburg in a book

review he wrote for Regulation, the libertarian

Cato Institute’s review of business and govern-

ment, most parties to the debate who more or less

agree with Ginsburg’s policy views disavow the

term. Ginsburg speciﬁ ed several doctrines that,

in his view, the New Deal–era Supreme Court

had ostracized so that they exist “only as part of

the Constitution-in-exile.” “The memory of these

ancient exiles,” Ginsburg continued, “banished for

standing in opposition to unlimited government,

is kept alive by a few scholars who labor on in the

hope of a restoration, a second coming of the Con-

stitution of liberty—even if perhaps not in their

own lifetimes.”

Is the “Constitution in exile” a movement, a

straw man, or a red herring? The answer to these

questions is consequential, hence contentious.

Whether the Constitution in exile is portentous or

an academic tempest in a teapot is hotly debated.

Some like Cass Sunstein contend that the Con-

stitution in exile is a rallying cry for law profes-

sors and judges who seek to restore what Sunstein

refers to as “Hoover’s Court,” “the Constitution as

it existed in 1932, before President Franklin Del-

ano Roosevelt’s New Deal . . . when the powers

of the national government were sharply limited.”

Not so, reply others, such as David Bernstein and

Orin Kerr. While there are law professors (and

Supreme Court justices, among them Antonin

Gregory Scalia and Clarence Thomas) who

lament the so-called Roosevelt revolution, individ-

ual misgivings do not make a movement. As Kerr

suggests, Sunstein “is cherry-picking a few com-

ments and imagining that these professors have

real inﬂ uence in order to create the impression of

a major movement afoot.”

Whether the Constitution in exile is a political

agenda or is tantamount to Chicken Little’s warn-

ing, long-standing, fundamental differences divide

American opinion leaders and policymakers over

legitimate relations between government and the

economy under the Constitution. Judge Ginsburg

identiﬁ ed this list of “exiled” constitutional doc-

trines and clauses: “the nondelegation doctrine

. . . along with the doctrines of enumerated pow-

ers, unconstitutional conditions, and substan-

tive due process, and their textual cousins, the

Necessary and Proper, Contracts, Takings, and

Commerce Clauses.” Taken together, these con-

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stitute what Edward S. Corwin called, in a semi-

nal 1950 article, a “Constitution of Rights” (what

Ginsburg called the “Constitution of liberty”)

versus a “Constitution of Power.” The New Deal

Court supplanted the former with the latter with

the result that, in Corwin’s words, “the Federal

System has shifted base in the direction of con-

solidated national power.”

For more information: Bernstein, David E.

“Lochner Era Revisionism Revised: Lochner and

the Origins of Fundamental Rights Constitution-

alism.” Georgetown Law Journal 92 (November

2003): 1; Corwin, Edward S. “The Passing of Dual

Federalism.” Virginia Law Review 36 (1950): 1;

Ginsburg, Douglas H. “Delegation Running Riot.”

Regulation 18, no. 1 (1984): 83–87; “Special Sym-

posium Issue: The Constitution in Exile.” Duke

Law Journal 51 (October 2001): 1; Sunstein, Cass

R. “Hoover’s Court Rides Again.” Washington

Monthly (September 2004), 35–36.

—James C. Foster

contempt of Congress

Although the Constitution does not explicitly

grant Congress the power to punish contempt,

broadly deﬁ ned as actions that obstruct the leg-

islative process, this power has been exercised by

the Congress since 1795, with the approval of the

judiciary in numerous cases. The power is recog-

nized as an inherent power of any legislative body

deriving from the practices of the British Parlia-

ment and the colonial and state legislatures and

necessary for the ability of Congress to perform its

work. In addition to its inherent authority to pun-

ish contempt, Congress has also passed civil and

criminal statutes authorizing the courts to deal

with contempt of Congress.

While several early cases of contempt of Con-

gress sought to deal with attempts to bribe con-

gressmen, most of the cases have involved efforts

of congressional committees to compel testimony

or the production of documents to further an

investigation. The only serious limitation placed

by the courts on the inherent power of Congress

to punish contempt is the requirement that the

matter must be within the sphere of Congress’s

constitutional responsibility, that is, the informa-

tion being sought is the subject of possible leg-

islation or oversight investigations. In Kilbourn

v. Thompson, 103 U.S. 168 (1881), the Supreme

Court disallowed what it saw as a probe into Kil-

bourn’s personal ﬁ nances, a rare instance of judi-

cial interference with Congress’s contempt power.

When the courts are asked to punish contempt of

Congress, they will apply individual rights as in

any other criminal manner.

Congress has traditionally exercised its inherent

authority to punish contempt by passing a citation

for contempt and ordering the arrest of the offend-

ing party by the sergeant-at-arms, compelling his

or her appearance at the bar of either the House

of Representatives or the Senate where the

individual faces trial by that body. In the trial, the

accused has basic due process rights, including

right to counsel and to confront witnesses. If

found in contempt, he or she may be imprisoned

for the duration of the congressional session. This

procedure was found to be time consuming and

unwieldy, and the last person actually imprisoned

by Congress for contempt was William Mac-

Cracken, an attorney who allowed his client to

destroy subpoenaed documents, in 1934.

In 1857, Congress passed a statute making con-

tempt of Congress a crime, drawing the courts

into the process of compelling testimony. The cur-

rent version of the statute makes contempt of Con-

gress a misdemeanor punishable by a ﬁ ne of up

to $1,000 and imprisonment for up to one year (2

U.S.C. Sections 192 and 194). Under the statute,

Congress refers the matter to the attorney general

to take before a grand jury. It is clear from the leg-

islative history and subsequent practice that the

statutory criminal process was meant as an alter-

native to trial in the House or Senate. When the

courts are asked to punish contempt of Congress,

they will apply individual rights as in any other

criminal matter.

Prosecution for contempt of Congress becomes

more problematic when a member of the execu-

tive branch is involved. In 1982, Environmental

Protection Agency administrator Ann Gorsuch

refused a subpoena for documents related to an

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investigation of the superfund under orders from

the president. A contempt citation was passed by

the House, but the Justice Department declined

to pursue the case. As usually happens, a com-

promise was eventually reached, whereby the

documents were provided to the investigating

committee.

For the Senate a third alternative, a civil pro-

cess, has been adopted, in which the Senate Legal

Counsel is directed to seek a court order compel-

ling compliance with the Senate’s process. If the

individual refuses, he or she may be punished

for contempt of court, rather than of Congress (2

U.S.C. Section 288 and 28 U.S.C. Section 1364).

For more information: Fisher, Louis. The

Politics of Executive Privilege. Durham, N.C.:

Academic Press, 2004; Grabow, John C. Congres-

sional Investigation: Law and Practice. Upper

Saddle River, N.J.: Prentice Hall Law & Business,

1988; Rosenberg, Morton, and Todd B. Tatelman.

Congress’s Contempt Power: Law, History, Prac-

tice and Procedure. Washington, D.C.: Congres-

sional Research Service (July 24, 2007).

—James R. Fox

contraceptives

A contraceptive is a device or method for prevent-

ing pregnancy. The conscious effort of individuals

to control conception, regardless of its legality or

social acceptability, is a constant in human his-

tory. Laws prohibiting the distribution of contra-

ception or the distribution of information about it

were a common feature of late 19th-century U.S.

law. Anticontraception laws were of a piece with

a range of American laws that regulated sexual

behavior, personal relationships, and family life:

Many states, for example, criminalized fornica-

tion, adultery, abortion, and homosexual acts.

Contraceptives did not become a subject of

American constitutional law until the 1960s,

when the laws of two states still prohibiting con-

traceptives (Connecticut and Massachusetts) were

challenged. Two resulting Supreme Court deci-

sions—G

RISWOLD V. CONNECTICUT, 381 U.S. 479

(1965), and E

ISENSTADT V. BAIRD, 405 U.S. 438

(1972)—struck down Connecticut’s and Massa-

chusetts’s anticontraception statutes, respectively,

on the ground that they violated a constitutional

right of privacy. Griswold and Eisenstadt were

the foundation for the Supreme Court’s later

holding in R

OE V. WADE, 410 U.S. 113 (1973), that

women have a fundamental constitutional right

to abortion. More broadly, the Court’s decisions

on contraceptives influenced later Court deci-

sions regarding personal and sexual relationships

(for example, L

AWRENCE V. TEXAS, 539 U.S. 558

[2003]).

In 1961, the Supreme Court dismissed an

early case involving contraceptive legislation, P

V. ULLMAN, 367 U.S. 497 (1961), on procedural

grounds. Two dissenting opinions, however, writ-

ten by Justices John Marshall Harlan and

William O. Douglas, argued that the Connect-

icut law at issue was unconstitutional. Four years

later, the state’s law was again before the Court,

in Griswold v. Connecticut, and this time, it was

struck down. Connecticut’s law was particularly

vulnerable to constitutional challenge: Connecti-

cut criminalized the use of contraceptives. Any

attempt by Connecticut to investigate violations of

the law promised to be particularly intrusive and

embarrassing.

Writing for the Court in Griswold, Justice

Douglas determined that a constitutional right

to privacy existed and encompassed the use of

contraceptives. The Court’s opinion featured

Douglas’s inventive and distinct argument that

the right of privacy, while not explicit in the Con-

stitution’s text, exists implicitly, because privacy

from government intrusion is a necessary condi-

tion for the existence and exercise of several of

the Bill of Rights’ guarantees. (In later right

of privacy cases, the Court ignored this aspect of

Griswold’s analysis, grounding the right of privacy

in the Fourteenth Amendment’s due pro-

cess clause.) Justice Douglas’s majority opinion in

Griswold also contained broad language regard-

ing marital privacy, including the suggestion that

rights relating to marriage, like a type of natural

law, precede and transcend the Constitution.

While Griswold’s analysis of the existence of

the right of privacy was quite broad, the right’s

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application was quite narrow. Read closely, Gris-

wold established only a right of privacy from gov-

ernment investigation and prosecution of the use

of contraceptives by married couples.

The Massachusetts law challenged in Eisen-

stadt v. Baird was different from Connecticut’s

law in two important ways. First, the Massachu-

setts’ law banned the distribution of all contracep-

tives except to married couples by a physician or

pharmacist. Because the law did not prohibit con-

traceptive use, its enforcement did not necessitate

the same degree of intrusiveness into the marital

bedroom as Connecticut’s law. Second, the law

only prohibited the distribution of contraceptives

to unmarried individuals.

The Court’s majority opinion in Eisenstadt,

written by Justice William J. Brennan, Jr., dra-

matically expanded Griswold’s applicability. Gris-

wold, as interpreted by Justice Brennan, was less

about a right of privacy from government intrusion

into the use of contraceptives and more about a

right of autonomy in decision making about fam-

ily planning. Furthermore, according to Justice

Brennan, the constitutional right of Griswold was

not a product of the marital relationship but was

an individual right. As a result, the Court held that

a state could not criminalize the distribution of

contraceptives to unmarried individuals without

violating the equal protection clause of the

Fourteenth Amendment.

In taking Griswold’s right of privacy beyond its

narrow factual foundation, Eisenstadt served as a

bridge for linking rights regarding contraceptives

to a constitutional right to abortion. In addition,

Eisenstadt contained a sentence that suggested

that the choice to have an abortion was a part of

the constitutional right of “privacy” established

in Griswold: “If the right of privacy means any-

thing, it is the right of the individual, married or

single, to be free from unwarranted governmental

intrusion into matters so fundamentally affecting

a person as the decision whether to bear or beget

a child.”

Note, however, that the Supreme Court worked

on the Eisenstadt case during the time it was

deciding Roe v. Wade (the Court decided Roe

over two Court terms). Eisenstadt was written

after a majority of justices, working on Roe, had

determined that a constitutional right to abortion

existed. In short, Eisenstadt did not inﬂ uence the

justices’ decision making regarding abortion rights

but rather served as additional justiﬁ cation for it.

In conclusion, the contraceptive decision Gris-

wold v. Connecticut did not just impact constitu-

tional doctrine but American politics generally.

The decision inspired lawyers and abortion law

reform activists to take a judicial path to victory,

challenging state anti-abortion laws on constitu-

tional grounds. In addition to waging state-by-state

legislative battles, abortion law reformers, after

Griswold, sought a more permanent, national

victory grounded in a constitutional right of pri-

vacy/autonomy. Less than a decade later, in Roe v.

Wade, they achieved it.

For more information: Garrow, David J. Lib-

erty and Sexuality: The Right to Privacy and the

Making of Roe v. Wade. Berkeley: University of

California Press, 1994; Gordon, Linda. The Moral

Property of Women: A History of Birth Control

Politics in America. Urbana: University of Illinois

Press, 2002; Johnson, John W. Griswold v. Con-

necticut: Birth Control and the Constitutional

Right of Privacy. Lawrence: University Press of

Kansas, 2005; Tone, Andrea. Devices and Desires:

A History of Contraceptives in America. New

York: Hill & Wang, 2001.

—James Daniel Fisher

contract clause

The contract clause of the Constitution was an

important source of litigation in the 19th century,

serving as a limit on the power of state and federal

governments. Today, the contract clause appears

to have very little effect on what state and local

governments do.

In its original design, the contract clause was

a supplement to Section 10 of Article I of the

U.S. Constitution’s prohibition of state-issued

paper money as well as the protection of private

contracts against state interference. In the early

years of the republic, the Supreme Court took the

contract clause to a different level, one that encom-

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passed public contracts. In FLETCHER V. PECK, 6

Cranch 87 (1810), the Court had to decide whether

a Georgia law annulling the previous legislature’s

act, which was a result of fraud and authorized the

sale of state-owned lands, was a violation of the

contract clause. Speaking for a unanimous Court,

Chief Justice John Marshall found that regard-

less of whether fraud was involved, in the original

land grant law, the law annulling the original act

violated the contract clause and was therefore

unconstitutional.

The case not only represented a victory for

the contract clause but also one for the federal

judiciary: This was one of the earliest cases in

which the Court declared a state law unconstitu-

tional. Fletcher v. Peck laid the foundation for the

Court’s decision in Trustees of Dartmouth Col-

leges v. Woodward, 17 U.S. 518 (1819). The trust-

ees of Dartmouth brought suit against the state for

violating its charter by converting the school from

a private institution to a public one. The Court

agreed with the trustees by ﬁ nding that the origi-

nal charter was an “inviolable” contract, an actual

property right, and any attempt on the part of the

state to interfere with that contract was “repug-

nant” to the Constitution.

In the 1830s, the Court began to relax its stance

on the contract clause. In 1785, the Charles River

Bridge Company had been granted a charter by

Massachusetts to operate a bridge. In 1828, the

state granted another company, Warren Bridge,

a charter to operate a bridge on the same waters

free of charge. The Charles River Bridge Com-

pany sued on the grounds that per the original

contract, it had a monopoly in the area and that

Warren Bridge had impaired the obligation of the

contract between Charles River Bridge and the

state. In Charles River Bridge v. Warren Bridge,

36 U.S. 420 (1837), the Court, led by Chief Justice

Roger Taney, disagreed and found that there

was nothing in the original contract that gave

Charles River Bridge a monopoly over the waters;

therefore, the charter granting the building of a

public bridge operated by Warren Bridge did not

violate the contract clause.

Furthermore, Taney argued, since there was

ambiguity in the contract as to whether a monop-

oly really existed, the Court should err on the side

of promoting the public welfare. In this case, the

community had a stake in the promotion of safe

and cheap transportation. Taney also feared that

advances in technology would be impeded if com-

panies claimed that original (and old) contracts

allowed them to stay in business. In a strongly

worded dissent, Justice Joseph Story found

that the original contract granting Charles River

Bridge a charter to operate the bridge (at cost) was

clear in its scope and intent. He scolded the Court

for ignoring years of precedent establishing the

sanctity of the contract clause.

Politically, the decision was a victory for states’

rights, and it marked the beginning of a trend for

the Court—the idea that the state had the author-

ity to exercise its police power to protect the

welfare of the community even if it meant that

property rights (embodied in existing contracts)

were voided. Although the decision in Warren

Bridge was in favor of the states, Justice Story’s

dissent was just as much of a pitch for the contract

clause as it was a pitch for the Court to hear cases

arising from state courts. Story invoked the 25th

section of the Judiciary Act of 1789, which pro-

vided for review of state supreme court decisions

by the U.S. Supreme Court in cases where a federal

law or the Constitution was involved. The states

bitterly opposed Section 25 and repeatedly clashed

with the Supreme Court over its implementation.

The contract clause as it applied to the taxa-

tion of state banks led to some of the most divisive

battles over Section 25 of the Judiciary Act. On

February 24, 1845, the Ohio General Assembly

enacted a law to incorporate the Bank of Ohio.

Section 60 of the act required the bank to submit

6 percent of its dividends to the state in lieu of

taxes. On March 21, 1851, the General Assembly

passed an act imposing a tax on all state banks.

The Piqua branch of the bank argued that the tax

was a violation of the original contract provided in

the 60th section, an argument that was rejected

by the Ohio Supreme Court. Piqua Branch of the

State Bank of Ohio v. Jacob Knoup, 16 Howard

(57 U.S.) 369 (1850), was brought before the U.S.

Supreme Court by a writ of error issued under

Section 25.

170 contract clause

xviii+446_EofUSConsti-v1.indd 170 3/12/09 3:04:30 PM

The U.S. Supreme Court reversed the deci-

sion of the Ohio court on the grounds that Sec-

tion 60 was a binding contract. Speaking for the

Court, Justice John McClean rejected the con-

tention that the Court was bound to respect the

construction of a statute by the highest tribunal

of a state. McClean argued the Court had the

right to review the statute and the state court’s

construction of the contract clause. Accordingly,

if the construction of the contract impairs its

obligation (as was the case), the Court was bound

to reverse the judgment and protect the Consti-

tution. In Sandusky v. Wilbor, 7 Ohio St. 481

(1857), and Skelly v. Jefferson Bank Branch of

Ohio, 9 Ohio St. 606 (1859), the Ohio Supreme

Court argued that Section 60 was not a contract

under the U.S. Constitution and rejected the

contention that state courts were subordinate

to the federal judiciary. In response, the U.S.

Supreme Court, in Jefferson Branch Bank v.

Skelly, 66 U.S. 436 (1861), reiterated the con-

tractual nature of the 60th section, as well as its

authority to review and reverse the decisions of

state courts.

Although the Supreme Court continued to clash

with the Ohio Supreme Court over the contractual

nature of the bank taxes, it became clear that the

main issue at hand was not whether these taxes

violated the contract clause. Rather, it had more to

do with whether the state supreme courts had the

ﬁ nal word over the construction of the contract

clause and, by implication, the Constitution.

In the 20th century, the economic crisis

brought on by the Great Depression forced the

Court to revisit the contract clause and its rela-

tion to the state’s police power. In 1933, Min-

nesota passed an emergency law under its police

power temporarily allowing for extensions in pro-

tecting homeowners from foreclosures. The loan

company argued that the law impaired the obli-

gation of contracts set forth in the Constitution.

In H

OME BUILDING AND LOAN ASSOCIATION V. BLAIS-

DELL, 290 U.S. 398 (1934), Chief Justice Charles

Hughes suggested otherwise. He argued that the

contract clause was not to be applied with “literal

exactness, like a mathematical formula.” Rather,

it was to be construed broadly and in conjunction

with the reserved power of the states to protect

the vital interests of the community, especially

in an emergency. He also argued that “great

clauses” in the Constitution were not to be nar-

rowly construed so as not to adapt to changing

circumstances. Hughes cited one of John Mar-

shall’s famous phrases: “[W]e must never forget

that it is a constitution we are expounding . . . a

constitution intended to endure for ages to come,

and, consequently, to be adapted to the various

crises of human affairs” (M

CCULLOCH V. MARY-

LAND, 4 Wheaton 316 [1819]). The decision of the

Court, in effect, marked the demise of the con-

tract clause.

For more information: Cushman, Barry.

Rethinking the New Deal Court: The Structure

of a Constitutional Revolution. New York: Oxford

University Press, 1998; Magrath, C. Peter. Yazoo:

Law and Politics in the New Republic. Provi-

dence, R.I.: Brown University Press, 1966.

—Randa Issa

Cooley, Thomas (1824–1898) legal scholar

Thomas Cooley, a renowned legal scholar, argued

that the U.S. Constitution contained not only direct

limitations on the power of the states but also

implied limitations that could be deduced from

the political theory underlying the Constitution.

Born near Attica, New York, Cooley completed

his legal studies in Adrian, Michigan, and settled

in the state. The Michigan senate chose Cooley

to compile the state statutes in 1857. The post

proved to be a stepping-stone to ofﬁ cial reporter

of the state supreme court. In 1865, Cooley was

elected on the Republican ticket as a justice of the

Michigan Supreme Court. He remained on this

bench until 1885. During his tenure, the Michi-

gan court became one of the most inﬂ uential in

the country.

Meanwhile, Cooley had joined the newly

formed law department at the University of

Michigan in 1859 and remained a member of the

law faculty until 1884. In 1887, Cooley agreed

to serve on the Interstate Commerce Com-

mission and became chair. Ill health forced his

Cooley, Thomas 171

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