Ogden V. Saunders – State bankruptcy law valid prospectively

• 1827. Held that states are able to prescribe terms for contracts not yet in existence at the time legislation is enacted.

• Majority held that the contracts clause only prohibits states from modifying contracts already in existence at the time of legislation. States remain free to prescribe rules that limit the ability to enter into certain contracts in the future.

• Thus, a bankruptcy law (which establishes procedures for releasing an insolvent person from contractual obligations) may not retroactively diminish the obligation of contracts that were already in existence when the law was passed, but such a law could restrict the obligation of contracts made in the future.

• Marshall’s only constitutional law dissent unsuccessfully attempted to establish the Lochner principle a century early.

Calder V. Bull – Ex post facto - Historical Modality – Criminal only

• 1798. Prohibition on ex post facto laws (Article I, §10) applies only to criminal laws. First case where historical source is relied on to make constitutional argument.

• This decision was a seriatim opinion, of kind that Marshall eventually managed to do away with. There was no majority opinion; each judge wrote for himself. All judges reached same conclusion, but by very different routes. Common Holding: USC prohibits ex post facto laws,” which in context of USC includes only criminal laws.

• Chase

• Originalist/Historical Argument – At time of adoption of USC, “ex post facto” was conventionally understood not by literal meaning, but rather by Blackstone’s definition.

• Ethical Argument (General Principles of Law and Reason ): Legislatures are limited, not only by the constitutional text, but also by “the very nature of free republican governments.”

1. Law in question did not directly take property from A and give it to B. Moreover, historically, legislatures functioned as legislative, executive, and judicial branches.

2. Thus, since CT’s law here does not violate principle of free republican government  law should not be invalidated.

• Iridell. Disagreed with Chase, not because such philosophical views were mistaken, but because they invited too broad a field for judicial discretion: “The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed on the subject.” No one can agree what principles of natural justice are  courts should not impose their views on legislatures.

• Significance of debate.

• This debate shows how questions of what (courts should say that) the constitution is are intertwined with questions of how the constitution is to be interpreted and who the interpreter is to be.

• Political theory is part of Chase’s constitution, but not Iredell’s, and institutional concerns about who gets to make decisions undergird Iredell’s decision to read political theory out of the document. Iridell highlights countermajoritarian problem of JR.

• Arguably, Iredell misinterpreted Chase slightly.

1. “Natural justice,” a transcendent standard that applies to all forms of government, isn’t exactly the same thing as the “vital principles in our free republican governments.”

2. The latter is a local phenomenon, having to do with the kind of government that we have around here. This debate thus anticipates the traditions vs. political theory debate in the discussions of selective incorporation (806-811).

• Historical modality. Several judges thought that the language, taken literally, supported petitioner’s claim, but they concluded that original intent overrode the literal text. Thus Blackstone and other British sources relied upon by the framers ended up being treated as if they were part of USC.