March 16, 2012
Would you like some examples?
1954’s Brown v. Board of Education struck down state laws enforcing racial segregation in public schools.
1967’s Loving v. Virginia voided state laws prohibiting interracial marriage.
1973’s Roe v. Wade banned states from criminalizing abortion.
2003’s Lawrence v. Texas struck down state laws criminalizing sodomy.
Although these rulings are all relatively recent, the Supreme Court began striking down state laws as unconstitutional with a ruling that came only seven years after the establishment of judicial review itself (marked by the 1803 ruling Marbury v. Madison).
That case is Fletcher v. Peck, and it was decided on March 16, 1810, 202 years ago today.
The facts of the case start in 1795, when the Georgia legislature granted around 35 million acres of state land (areas around the Yazoo River, in what is now Alabama and Mississippi) to private speculators.
The sale was approved by all but one member of the Georgia legislature, and the sale price was 1.5 cents per acre – a bargain, even in 1795 dollars.
It was later revealed that all of the members of the legislature who voted for the sale were bribed to do so.
Amidst the public outrage that followed, the legislators were voted out of office, and, in 1796, a new state legislature voided the sale.
In 1800, John Peck bought some land that was part of the corrupt 1795 grant, and in 1803, he sold 13,000 acres of it to Robert Fletcher for $3,000.
Fletcher soon discovered that the 1795 land sale had been voided by Georgia law.
He then brought suit against Peck for damages, claiming Peck didn’t hold the valid title to the lands he sold to Fletcher (and so, therefore, Fletcher didn’t have legal title, either).
After several appeals, the Supreme Court heard the case.
The Court ruled that the act of 1796 that repealed the act of 1795 was unconstitutional in that it violated Article I, Section 10 of the Constitution.
Specifically, the Court ruled that the 1796 law was both an ex post facto law (that is, a law that retroactively changes past legal obligations and consequences) and one “impairing the Obligation of Contracts.”
The Court’s striking down a law as ex post facto wouldn’t be regarded as unusual today (though legislatures have become increasingly cautious in the wording of bills to prevent such an outcome).
It would be unusual, however, to see the Supreme Court strike down a state law for “impairing the Obligation of Contracts” – i.e., for violating the Contract Clause.
Though these grounds were used to strike down state child labor protections and minimum wage laws for women and children (during the so-called “Lochner era”), the Supreme Court hasn’t invoked the Contract Clause to strike down legislation since the late 1930s.
Though some jurists continue to point to Fletcher in the hopes of resurrecting the Contract Clause’s former authority, that philosophy hasn’t yet gained popularity in the legal mainstream, nor does it seem likely to anytime in the near future.
On the other hand, the other legacy of Fletcher, the Supreme Court’s practice of striking down state laws as unconstitutional, is alive and well, and will likely continue to be as long as the Court operates.