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Subject Area: Law
Topic: The American Revolution and Constitution

§ 94.: Liberty of contract, a constitutional right.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 94.

Liberty of contract, a constitutional right.—

As an abstract proposition, it would be nowhere questioned that the right to make whatever contract one pleases is guaranteed by all the American constitutions, Federal as well as State; at least, by necessary implication from the constitutional guaranty that no man shall be deprived of liberty or property, except by due process of law. Nor is it necessary, under the prevalent rules of constitutional interpretation and construction, to rely upon any unwritten law: for, while the phrase, freedom or liberty of contract, is not to be found in the bill of rights of any American constitution, in almost all of them the right to acquire and possess property and to pursue happiness is declared to be inalienable. And this it has been rationally declared “includes the right to make reasonable contracts, which shall be under the protection of the law.”1

In all the constitutions of the United States, it is substantially declared that “no man shall be deprived of his life, liberty and property, except by due process of law” (sometimes “except by the judgment of his peers and the law of the land”). And one’s liberty, as well as property, is infringed, if his liberty to make reasonable contracts is taken away or restricted by unreasonable regulations. But, here, as elsewhere in the discussion of the subject of police power, this constitutional liberty of contract is not conceded to be absolutely free from all legislative restraint. Such a condition would cause this liberty by degenerating into an unrestrained license, to become a serious menace to the safety and welfare of the public, or to threaten trespass upon the just rights of other individuals. From time immemorial, it has not been lawful for one to make a contract for the commission of a crime, or for the violation of any law or trespass upon any one’s rights. It has never been lawful to contract for the commission of a fraud, or to commit fraud in the making of a contract. And now, with the extension of the scope and application of the police power in the furtherance and protection of public and individual welfare, which progresses with the increase in the popular knowledge of public affairs; we find regulations, which more or less limit or restrict liberty of contract, rapidly increasing. And the courts are being constantly called upon to declare what regulations of this kind are reasonable or unreasonable, and hence constitutional or unconstitutional. In the next succeeding sections, a variety of these restrictions upon liberty of contract will be explained and their constitutionality or unconstitutionality expounded in the light of the adjudications.

[1]Commonwealth v. Perry, 155 Mass. 127. See, also, State v. Stewart, 59 Vt. 273; State v. Goodwill, 13 W. Va. 179; Leep v. St. Louis I. M. & S. Ry., 58 Ark. 407.