Teaching Assistants: I Love Teaching Blaisdell; Teaching Blaisdell Does Not Love Me

The title of this post is an example of chiasmus on the sentence level.  My experience of chiasmus in teaching Blaisdell occurs on the more dramatic level.  Imagine a two-person theatrical scene in which one character enters in a buoyant mood while the other is in despair.  They have some exchange which results in a reversal of mood.  The first character is now in despair while the other’s outlook has brightened.  First George is down, and Elaine is up.  Then George is up, and Elaine is down.  Jerry is Even-Steven.  

When I set out to teach Blaisdell this week, I was down.  The more I taught it, the more excited I got about it.  My students on the other hand, may have entered the week buoyed by my assurances that defenses and excuses are easy.  By the end of my attempt to teach Blaisdell, they were at their lowest level of enthusiasm for contracts since the battle of the forms.  Maybe it’s not worth the bother, but it seems odd not to teach the Contracts Clause in Contracts, given that the students are unlikely to learn about it in Constitutional Law, except in a passing reference to the now largely-discredited doctrine of economic substantive due process.

For those who have not taught Blaisdell and find it daunting, as I did, I recommend Samuel Olken‘s Charles Evans Hughs and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence, 72 Or. L. Rev. 513 (1993).  The piece is longish, but it is an easy read.  It quickly lays out the background as to why the Constitution includes a Contracts Clause.  It then outlines two traditions of interpreting the Clause, which respectively foreshadow the majority and the dissenting positions in Blaisdell.  

The Blaisdell dissent offers a strict construction of the Contracts Clause.  After all, the Clause expressly prohibits states from impairing any obligation of contracts.   The language was adopted to prevent states from forgiving debts, as they were doing in the aftermath of the Revolutionary War.  The dissent bolsters its textualism with an original expected application originalist approach and broad readings of the Contracts Clause from the Marshall Court in contexts as varied as legislative land grants and corporate charters.  That strict reading of the Contracts Clause informed the conservatives’ approach to the Clause during the Lochner Era, bolstered by their embrace of economic substantive due process.

The majority draws on three traditions of cabining the Contracts Clause which also date back to the Early Republic and the Marshall Court.  That Court permitted state insolvency laws notwithstanding the Contracts Clause by distinguishing impairment of a contractual right and adjustments to available remedial schemes.  Later in the nineteenth century, the Court read the Contracts Clause against the background of terms implied into every agreement, which recognized the states’ reserved powers, including its powers to grant corporate charters and issue licenses, and its general police powers.  The Blaisdell majority, relying on that jurisprudence, read the Contracts Clauses as requiring a balancing of interests: on the one hand we have the individual right to freedom of contract; on the other we have the states power to act in the public interest.

If you read this post excited about the Contracts Clause but are now deflated, you have experienced one half of the chiasmus.  I, on the other hand, having overcome my anxiety brought on by the empty (web)page, am now elated to have shared my enthusiasm for Samuel Olken’s article with you.