April 9, 2011
Footnote of the Day: It's the Contract(s) Clause
Article I, section 10 of the Constitution provides that "no state shall" "pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts." That last prohibition is known as the Contracts Clause - - - or is it the Contract Clause?
Professor Jay Wexler reveals that federal courts are about five times more likely to use the term "Contract Clause" than "Contracts Clause" - - - 4800 to 900 cases in the "allfeds" database.
But as Wexler notes, the Fourth Circuit has devoted a footnote to deciding the issue. Wexler is exceedingly knowledgeable about judicial footnotes and we've previously discussed his useful taxonomy. But how would this footnote be classified? Footnote 2 in the opinion in Crosby v. City of Gastonia, decided March 10, 2011, stated:
The Clause provides, in pertinent part, that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1. The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the "Contract Clause" and the "Contracts Clause." Because the text of the Constitution speaks of the obligation of "contracts" in the plural, we will use that form of the noun to refer to the Clause in this opinion.
(ellipses in orginal).
Wexler notes that Justice O'Connor was sitting by designation on the Fourth Circuit panel, but also expresses his opinion about the relevance of the singular and plural designations for the clause in question. Wexler's post - - - and his new blog "Odd Clauses Watch" is well worth a read.
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