Is Blaisdell still good law?
James G. Wilson
james.wilson at law.csuohio.edu
Thu Sep 8 08:01:33 PDT 2005
Assume the Louisiana Legislature passes a law suspending all
mortgage and credit card payments for six months to help its citizens
recover from the disasters, both natural and man-made, that are
afflicting them. I am more than willing to concede that such a law is
an "impairment of contract," but is it an impermissible one in light of
Home Building and Loan Ass'n v. Blaisdell? Right now, the case is too
close to call. If one believes, as I do, that the two new Bush
nominees are extremely sympathetic to the Bushian presumption that
governments have little or no legitimacy when it comes to solving
domestic social problems, they could easily overrule/distinguish
Blaisdell. Thomas would almost certainly join in on originalist
grounds. Scalia seems a likely ally, unless he finds Blaisdell to have
created some sort of a "tradition." That leaves Justices Kennedy and
Breyer in the balance. As we saw in Lopez, Kennedy seems reluctant to
repeal the New Deal--to make the Supreme Court the leader in the
formation of economic and social policy-- but he is notoriously
unpredictable (Of course, this hypothetical demonstrates how he now has
O'Connor's role as the crucial swing vote in most cases). Breyer is
very sympathetic to private power; he might find this deprivation of
corporate profits to be unconstitutional. Needless to say, if Bush can
replace one of the remaining moderate/liberals, the precedent becomes
much more tenuous.
It would be more than symbolic if the new Supreme Court reversed
Blaisdell, which, of course, was a leading indicator of the Court's
eventual validation of the New Deal. It would be the
constitutionalization of aristocratic barbarism.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof