>>> Item number 363, dated 93/12/10 10:47:54 -- ALL

Date:         Fri, 10 Dec 1993 10:47:54 -0600
Reply-To:     Legal History discussion list <H-LAW@UICVM.BITNET>
Sender:       Legal History discussion list <H-LAW@UICVM.BITNET>
From:         cfcrw@uxa.ecn.bgu.edu
Subject:      Fletcher v. Peck

        I had thought that First and Fourteenth Amendment discussion would take

off, but was apparently in error (or else, everyone accepts my arguments). Let's try rather an attack on Marshall.

Fletcher v. Peck (1810) was the first case on the obligations of contracts to reach the Supreme Court. The political heat generated by that case, however, centered on evasion of the eleventh amendment. That side of the case, however, should have been uncontroversial.

The doctrinal core of the
case is clearly wrong in comparison with original intent of the obligations of contracts clause (perhaps not if one judges constitutionality solely in reference to good social policy), badly argued, and a foundation for a whole line of controversial cases in the future, beginning with Dartmouth College and ending with, on the one hand, the inalienable powers doctrine, and, on the other hand, Blaisdell.

Marshall justified the application of the obligations of contracts clause to a grant of property by finding two different contracts in a grant. The first was an implied contract by the grantor not to reassert title. This is a novel implied contract as far as I can ascertain and invented for this case: the real reason why the grantor cannot reassert title is that he has given it up so that he has no grounds left to assert anything. Moreover, he is not barred from reasserting if there was a flaw. The second contract Marshall alleged was the grant itself, and this reference to Blackstone. Blackstone does indeed have a passage in which he divides contracts into executed and executory contracts (which Marshall cites)[the difference is between completed contracts and those in which something is left to be done; that is, it is not modern definitions]. Marshall lifts that quotation and says that constitutional language must be construed at its maximum [a principle of constitutional construction he expressly back away from in Dartmouth when he considers marriage.] Thus the contracts clause would have to include executed as well as executory contracts. This likewise is specious, not only because
of the flawed character of the principle of constitutional construction, but because Blackstone's purpose in even mentioned executed contracts was to shove them over into the section concerning grants, which was a separate category clearly considered as property. Those two specious contracts were reinforced by
an a fortiori argument: that if the framers had protected contracts (the lesser), then surely they must likewise have intended to protect property (the more
important). Not considered, however, is the actual rationale behind the contracts clause, as with debtor relief statutes and the necessity of a commercial treaty with Britain: it is quite plausible that the framers would have protected contracts and not property.

Fletcher, the first case on the contracts clause, thus unconstitutionall expanded federal power. I think the argument can be attributed to Story, who made the final argument to the court (he was not yet on the court), and Story probably picked up the argument that Hamilton had been making for this case years before (it had been in the works a long time). Thus in Fletcher we can see the success of one part of Hamilton's nationalist agenda (another part of which, the "core body of national rights" interpretation of the privileges and immunities clause of Art. IV, did not succeed).

For me, the unconstitutionality of Fletcher and thus the vulnerable foundations of Dartmouth and Charles River Bridge, help explain the idiocy of the inalienable powers doctrine. Having maintained a rigid contracts clause (and rigidity was indeed the original intent: Art I section 10 clauses 2,3 allow for infringements by congressional permission; clause 1 does not and was meant to be rigid and thus ascertainable from Madison's notes) through to mid-century, the court found that it had to protect the states from themselves by the _supreme court_ (not congress) permitting states to impair the obligations of certain contracts knowingly made, thus a second time in a different way departing from original intent.

If anyone is still reading at this point (or is everyone just lurking?). like to know if this line of argument is perceived as useful, interesting, totally misguided, etc. Legal historians must want to discuss something.
Robert C. Palmer HISTW@jetson.uh.edu History and Law
University of Houston

Editor's Note: Robert--One possibility is that we are at the end of the semester. My first final is tomorrow and I spent hours yesterday getting things in order for that.