Volume 4

The Contract Clause: Originas and Early Development

James W. Ely, Jr.

Forrest McDonald remarked that the adoption of the contract clause at the constitutional convention “is shrouded in mystery.”1 To unravel this mystery, one must start by considering the economic changes experienced by the American colonies during the eighteenth century. As the colonies grew and became more prosperous, they gradually rejected the doctrine of mercantilism inherited from Great Britain, with its emphasis upon governmental controls, in favor of an emerging market economy. Wage and price regulations, as well as the system of exclusive public markets, gradually atrophied.2 Moreover, the law governing real property was revamped little by little to facilitate land transactions, thereby treating landed property increasingly as a market commodity.

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4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 199 (2015)