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
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.
President Reagan's Commission on Housing, Final Report 180 ( 1982).
See B. Siegan, Economic Liberties and the Constitution ( 1980).
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).