Misrule of Law

Supreme Court justices are often accused of inventing constitutional rights not supported by the Constitution’s text or the understanding of the Framers, but judicial dereliction sometimes runs in the opposite direction. The Court has allowed certain rights, including some expressly set forth in the Constitution, to wither away. Originalism is a two-way street; judges should not add to or subtract from the original meaning of the text. The contract clause is such a casualty of judicial dereliction. Vanderbilt law professor James W. Ely, Jr. explains the history of the clause in his book, The Contract Clause, which I reviewed in Law and Liberty in an essay entitled “Desiccated by Judicial Dereliction.” Read it here.