California Law Review
In this Essay, Professor McConnell argues that constitutional interpretation should extend beyond the substantive principles expressed in the Constitution to the structural and institutional choices of the Framers. As an example, he explores possible explanations for the disparate treatment the Constitution accords to property and contract rights. Despite the Founders' general commitment to the preservation of private contract and property rights, the contracts clause, by its terms, applies only to state governments, while the just compensation clause applies solely to the federal government. Part I of the Essay summarizes the textual problem posed by the contracts and just compensation clauses. Part II reviews the history of the adoption of those clauses. Part III offers two possible explanations for the reference of each of the two clauses to but one of the two levels of government in our federal system. Part IV concludes the Essay by discussing some implications of these explanations.
Michael W. McConnell, "Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure," 76 California Law Review 267 (1988).