Topic: Fletcher v Peck, Dartmouth College v.
Woodward, and the Contracts Clause
Introduction
Article II, Section 8 of
the Constitution contains a list of subjects on which Congress may legislate. Among
these enumerated powers are the Necessary and Proper Clause that we discussed
in the last class and the Commerce Clause that we will discuss next class.
Section 9 of Article I lists a number of things that Congress and the President
are forbidden to do, such as Congress enacting ex post facto laws that criminalize behavior after the fact or the
president suspending the writ of habeas
corpus during peacetime. In fact, in response to the demand by several
states during the ratification debates for a bill of rights, section 9 was
pointed to by Hamilton (in Federalist
84) and other supporters of the Constitution as a bill of rights already within
the Constitution. Their argument did not carry the day, but the section does
list a number of limitations that the Constitution imposes on the national
government.
Section 10 of Article I contains something one might not expect in a national
constitution: a list of things the states
are not permitted to do. Among this list is the Contracts (or Contract) Clause:
No state shall pass any “Law impairing the Obligation of Contracts.” The sense of this prohibition becomes plain
when we consider the chaotic financial conditions in the several states at the
time the Philadelphia delegates convened. States would sometimes pass laws
favoring debtors or creditors under existing debts and contracts. The Contracts
Clause was intended to bar states from passing laws that would change the terms
of private contracts. This guarantee of one’s rights under an existing contract
amounts to an individual right or liberty. In the case of Sturgis v. Crowninshield (1819) the Court adhered to this common
sense reading of the Clause and struck down a New York bankruptcy act that
discharged the defendant from his obligation to pay his creditor a debt. In two
prior cases, however, the Marshall Court construed the Clause more expansively:
the Contracts Clause became a positive restriction on state governments in
matters extending far beyond private contracts.
The two opinions of John
Marshall that established this new constitutional doctrine are Fletcher v. Peck in 1810 and Dartmouth College v. Woodward in 1819.
Though there are important legal distinctions between the two cases, they both
clearly articulated the Marshall Court’s nationalist construction of the
Contracts Clause. I chose to focus on Dartmouth
College simply because of the excellent background story that is contained
in the Garraty text.
In both of these cases,
the focus of the constitutional challenges were state laws that changed the
legal rights that individuals had received from earlier laws, not from private
contracts. In Fletcher, the 1795
Georgia legislature had been bribed to the last man to enact a law offering
land grants for some 35 million acres (the “Yazoo” land grants) at the
extremely low price of about a penny and a half per acre. The purchasers—four
well-connected land development companies—benefited tremendously from the
grants. When the later Yazoo scam was discovered, the Georgia voters threw the
bums out and elected a new legislature, which then repealed the land grant law.
Though only a year passed between the two state enactments, the development
companies had already sold some of the land to third parties. The repealer
threatened to make the third parties’ titles to the land worthless. Since the
Eleventh Amendment prevented them from suing Georgia directly, two of the
out-of-state buyers of Yazoo lands concocted a federal lawsuit against each
other that was aimed at challenging the constitutionality of the repealer.
In Dartmouth College, the college trustees who properly held office
under the original royal college charter sought to challenge the
constitutionality of a state law that replaced that charter with a new one and
established Dartmouth University. The old trustees argued that their rights
under the original charter were impaired by the later state law. They got into
court by an unusual route—an action of trover to recover Dartmouth College documents that had been taken
from the college by the newly chartered Dartmouth University secretary and treasurer, Woodward, who, the trustees
said, had no lawful authority to take them. Again, the fundamental question in
the case was whether the Contracts Clause applied to government-issued
charters. (Trover is a legal action
by a plaintiff to recover property or the value of property that has been
wrongfully converted by the defendant.)
As you read the Dartmouth College opinion, try to
identify the reasons that Marshall gave for considering a college charter to be
a contract like any other. Did Marshall find the Dartmouth College corporation to be a “public” or a “private” corporation?
What distinction did Marshall draw between the two? How did this opinion
enhance national supremacy? The opinion is sometimes referred to as containing
Marshall’s worst legal reasoning, but
it is still considered by everyone a great case, leaving us to ponder how bad
legal reasoning can constitute a great judicial event!
Part One: Dartmouth College, Fletcher, and the Contracts Clause
Let’s discuss the Fletcher case first. In Fletcher, the Court held that the
Contracts Clause applies to government statutes that grant property rights to
individuals: in other words, the state land grant statute was a contract! The
Georgia statute that repealed the land grant statute was struck down because it
destroyed the contractual rights that the earlier statute had created and
vested in the original and subsequent buyers of the land. In other words, it
impaired the obligations created by the original contract—namely, the land
grant statute.
The opinion is important
on several grounds. First, and most importantly for this course, Marshall
treated a state land grant as a private contract and thus as subject to the
Contracts Clause. In those days of territorial development, this ruling brought
many common state statutes under national constitutional standards. It
significantly limited the power of the states to alter or repeal such statutes.
Second, the Court refused to base the validity of a state statute on the
motives—here, the corrupt motives—of the members of the legislature. The Court
held that the original statute, though a result of large scale bribery and
corruption, was a valid land grant. This holding strengthened legislative
authority in the states and in Congress: the reasons for passing laws could not
be the basis for a challenge of the laws’ validity. What was done was done. And
third, historically, the decision was immensely important during a period when
government land grants were rapidly bringing territory into the possession of
thousands of American settlers and land speculators. Buyers, sellers, and
owners of land granted originally by state governments could rest easier that
their legal right to land was secure.
The opinion thus contributed
to the economic development of the country. The opinion also put the states in
an awkward position, as Professor Urofsky points out. If a state legislature
wanted to undo a fraudulent or ill-conceived act of a previous legislature, it
had to maneuver around the Contracts Clause restriction on impairing property
rights that had been created by the earlier legislation.
The Dartmouth College case was another exercise in expanding the
meaning of “contract,” this time by construing certain corporate charters as
contracts. In the late eighteenth and early nineteenth centuries, the potential
of the medieval institution of the corporation as a device for economic and
business development was still not widely recognized. Professor Urofsky points
out that very few entrepreneurial business corporations existed during the
Revolutionary period. Most were corporations formed to perform governmental
tasks such as building bridges and roads and canals. Even by 1817, when Urofsky
reports the number had “mushroomed” to almost 1800 corporations, most were
still formed to perform public or governmental functions. In those days, and
through much of the nineteenth century, each corporation was chartered by an
act of the state legislature.
In an earlier case, Head and Amory v. Providence Insurance
Company (1804), Marshall had defined corporations as “public” in nature,
and as public corporations were essentially performing governmental tasks, they
were subject to state management and control. Two subsequent opinions by Justice
Story, Terrett v. Taylor and Town of Pawlett v. Clark (both decided
in 1815), however, distinguished between public corporations and private
corporations. (Story, a republican in politics—he was appointed to the Court by
President Madison—but a fierce nationalist in his constitutional outlook, held
that public corporations were subject to state control.) States could alter or
revoke their charters. Private corporations were to be treated differently
under the law and under the Constitution. In Terrett, which, like Town of
Pawlett, was a case involving property acquired by an incorporated church,
Story held the incorporated church was a private corporation. He held further
that Virginia could not subsequently amend or revoke the corporate charter to
nullify the church’s property holdings, and he rested that holding on “the
principles of natural justice, upon the fundamental laws of every free
government, upon the spirit and the letter of the constitution of the United
States, and upon the decisions of most respectable judicial tribunals.” (Terrett v. Taylor, at 50-51.)
In Dartmouth College v. Woodward, Marshall had to maneuver around
these earlier precedents written by Story and himself. Marshall first
considered the definition of “contract.”
He concluded that “contracts,” as addressed in the Contracts Clause of
the Constitution, must be considered in the relatively narrow sense of “contracts respecting property.” He then discusses
corporations, using the public-private distinction that Justice Story’s
opinions had established in Terrett
and Town of Pawlet.
Marshall reasoned that the college was essentially a private corporation
because it vested the trustees with property rights—the right to accept
donations, to pay faculty, to purchase property. Marshall then closed the
circle by finding that the charter for a private corporation was “plainly a
contract.” Since the private funding of the college was one of the principal
factors, if not the principal factor,
in Marshall’s determination that the college was a private, not a public,
corporation, the funding also led Marshall to the conclusion that as a
college’s charter was essentially a contract respecting property and thus one
that cannot be impaired by the state. The new charter granted by the state legislature
had the effect of injuring or impairing the original contractual and property
rights of the old trustees under the royal charter. Thus, the new corporate
charter violated the Contracts Clause by impairing the contractual rights
existing under the original charter. The effect of this opinion was to extend
the scope of the Contracts Clause to prevent states from revoking or amending
charters to private corporations in ways that affect the corporations’ property
rights.
Dartmouth College marked the high water mark of the Court’s nationalistic
interpretation of the Contracts Clause. Marshall’s and Story’s later attempts
to restrict state authority to regulate private contracts were rejected by the
Court in the Ogden v. Saunders case
(1827), where the two justices were placed in the uncharacteristic position of
dissenting. The nationalism of the Court began to wane in the last decade of
Marshall’s reign. Still, the Court decision established the Clause as a
significant restriction on state power in the nineteenth century. According to
Nowak and Rotunda, the Court struck down thirty-nine state statutes between
1874 and 1898 under the Contracts Clause.
[Charles River Bridge
case] [Preparation for Home Building and Loan]
The early twentieth century
saw a decline in use of the Contracts Clause as the Court embarked on reviews
of state regulation through it fabricated doctrine of substantive due process
under the Fourth Amendment. The United
States Trust Company and Allied
Structural Steel Company cases in the 1970s, however, showed that there was
still some life in the old clause. The Court declared state laws
unconstitutional in both of these cases.
Of more immediate
interest, perhaps, because of the various government attempts to aid the economy
and particular its home-owner victims in the recent Great Recession of 2008 is
a Great Depression case, Home Building
and Loan v. Blaisdell (19334). In it, the Court
addressed a Minnesota statute that sought to ease the financial obligations of
home-owner-mortagors (the lenders are the “mortagees”) by expanding the redemption period for
mortgagors who fell behind on their payments and were facing foreclosure. The
case is also often used as an example of the Court’s position on the unwritten
“emergency powers” of American governments during times of war or financial
crisis.
Please read the excerpt
from Home Building and Loan v. Blaisdell, and ask yourself whether Marshall and Story
would have decided the case the same way. What was the Court’s reasoning on the
Contracts Clause issue, and what rule did it apply in assessing the Minnesota
statute’s constitutionality? Note that the decision was a close five-to-four
vote. The dissent, which you can find in the full report of the case also
linked (with other related cases) on the fourth class assignment page, may be
of interest, too, in placing the issue in proper perspective. Justice
Sutherland’s final paragraph is worth noting.
Part Two: Twentieth Century Developments
©William S Miller