Tuesday, May 17, 2016

Ely on the Contract Clause during the Civil War and Reconstruction

James W. Ely Jr., Vanderbilt University Law School, has posted a pre-publication draft of The Contract Clause during the Civil War and Reconstruction, which appeared in the Journal of Supreme Court History 41(2016):
This essay examines the important role of the contract clause in constitutional law during the Civil War and Reconstruction. Although scholars have given little attention to the contract clause during this pivotal era, these years witnessed a torrent of litigation involving this provision of the Constitution. The paper surveys a wide range of topics, including the status of contracts calling for payment in Confederate currency, the legality of state laws barring enforcement of contracts for the purchase of slaves, and the validity of the Legal Tender Act of 1862. Debt relief measures in the Reconstruction South were a fertile source of contract clause litigation. Highly controversial moves by state legislatures to enlarge the amount of homestead exemptions and to apply such exemptions retroactively to prior contacts were blocked by the Supreme Court as violations of the contract clause. The essay also treats the interplay between the Supreme Court and the state courts in the interpretation and application of the provision. It concludes that Supreme Court was stalwart in upholding the contract clause during the Civil War and Reconstruction, but notes that the provision gradually declined in significance after 1880.