The Attorney General's Lawyer: Inside the Meese Justice Department

By Douglas W. Kmiec | Go to book overview
Save to active project

The contract clause protects vested contractual rights; substantive due process illicitly invites the Court to question the policy wisdom of legislation. The contract clause does not deny a legislative body the power to prohibit private parties from entering into certain contracts in the future (after a law's date of enactment); substantive due process invalidation results in a type of unconstitutional preemption of even prospectively-applied legislation. The contract clause exists in constitutional text and history; substantive due process is in neither. The two paths of constitutional analysis could not be more different. As I observed at the Attorney General's conference on economic liberty in 1987, while both the contract clause and the discredited substantive due process are ostensibly aimed at the same objective, substantive due process is an imposter that, in the name of protecting economic liberty, has weakened it.

There were few litigation opportunities to raise the correct interpretation of the contract clause during Ed Meese's tenure as Attorney General. Perhaps now that the taking clause has been nudged back toward its original path, the opportunity will not be far behind. 61

President Reagan's Commission on Housing, Final Report 180 ( 1982).
Id. at 181.
See B. Siegan, Economic Liberties and the Constitution ( 1980).
U.S. Const. amend. V.
The Court's "incorporation doctrine" is the subject of much debate, with some scholars contending that it is a substantial departure from the original understanding. See R. Berger, The Fourteenth Amendment and the Bill of Rights 11- 13 ( 1989). It is beyond my purposes in this book to fully examine this debate, but suffice it to say for present purposes, that I am inclined from the history toward the view of the late Justice Hugo Black that the first eight amendments were intended to be incorporated against the states by the due process clause of the fourteenth amendment. Adamson v. California, 332 U.S. 46 ( 1947) ( Black, J., dissenting). I do not agree, however, with Justice Black's characterization of the natural law as "an incongruous excrescence on our Constitution." It is unfortunate that Black chose to liken the majority's "selective" incorporation theory to natural law, since they are not the same. As understood by the framers, natural law related to fundamental precepts of life, liberty, and property, it did not provide answers dependent upon contingent facts, such as whether "fairness" is offended by permitting the prosecution to comment on the defendant's failure to take the witness stand.
Meese, opening remarks at the Economic Liberties Conference, June 14, 1986, in Major Policy Statements of the Attorney General, 141 ( 1989).
Virginia Colonial Constitution of June 12, 1776, reprinted in B. Schwartz, The Bill of Rights: A Documentary History ( 1971).
2 U.S. (Dall.) 304 ( 1795).


Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this page

Cited page

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
The Attorney General's Lawyer: Inside the Meese Justice Department


Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 244

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?