Mendelson v. Wright: Understanding the Contract Clause

Abstract

XW5T ALLACE MENDELSON charges that Benjamin Wright in his The Contract Clause of the Constitution (1938) is guilty of Progressive muckraking, a view holding that the Founding Fathers wrote into the Constitution protections on behalf of the existing economic elite composed of creditors in conflict with a large debtor class (Mendelson 1985: 262). Moreover, Mendelson attacks the conventional wisdom that Chief Justice John Marshall unjustifiably expanded the meaning of the contract clause to protect the monied interests against exercises of state power. Mendelson regards this Populist-Progressive position as historically untenable (1985: 264). Mendelson finds fault with all the major opinions upholding state power over private property. He applauds contract clause decisions with outcomes favorable to private property.1 With pleasure he reports a renaissance of the contract clause in the form of two recent Supreme Court decisions, one in 1977 and the other in 1978. He views these cases as . . a repudiation of the Populist-Progressive, in favor of the Founders' Lockean outlook (1985: 274). Whether Mendelson or Wright is correct, or at least which view represents a closer approximation to the truth, is not a matter of idle intellectual curiosity. It is fundamental to an understanding of the role of the United States Supreme Court in constitutional history. Professor Mendelson has seriously threatened the foundation of what we think we know. His article cannot be ignored, lest his analysis, as mistaken as I believe it to be, become the prevailing interpretation. Wright maintains that the contract clause was intended as a prohibition on state impairment of contracts among private parties, and not relations between a state and private parties. That is, the state was not viewed as having the same status as a private party. Thus, John Marshall's decision in Fletcher v. Peck (6 Cranch 87 [1810]) went beyond what the Framers intended. Wright explains that John Marshall's view stemmed