Douglas Kmiec Article, The Contract Clause: A Return to the Original Understanding, Cited by Justice Gorsuch

June 11, 2018  | 1 min read

An article by Professor Douglas W. Kmiec, U.S. Ambassador (Ret.), "The Contract Clause: A Return to the Original Understanding," 14 Hastings Const. L.Q. 525 (1987), was cited by Supreme Court Justice Neil Gorsuch in his dissent in Sveen et al. v. Melin, (U.S. June 11, 2018).  The majority opinion in the case holds that the retroactive application of a Minnesota statue regarding the distribution of life insurance proceeds does not violate the Contracts Clause of the Constitution.

Excerpt from Sveen v. Melin (Justice Gorsuch, dissenting):

The categorical nature of the Contracts Clause was not lost on anyone, either. When some delegates at the Constitutional Convention sought softer language, James Madison acknowledged the “‘inconvenience’” a categorical rule could sometimes entail “‘but thought on the whole it would be overbalanced by the utility of it.’” Kmiec & McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L. Q. 525, 529–530 (1987). During the ratification debates, these competing positions were again amply aired. Antifederalists argued that the proposed Clause would prevent states from passing valuable legislation. Id., at 532–533. Federalists like Madison countered that the rule of law permitted “property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.” Id., at 532. And, of course, the people chose to ratify the Constitution— categorical Clause and all.

The complete Supreme Court opinion may be found here

The Contract Clause: A Return to the Original Understanding may be found here