Fourth Circuit Issues Somewhat Pissy Footnote: It’s the “Contracts” Clause, not the “Contract” Clause

Earlier this month, the Fourth Circuit decided a case called Crosby v. City of Gastonia, which involved a challenge by retirees of the Gastonia Police Department to the city’s failure to pay retirement benefits from a pension fund that ran out of money.  One of the claims was that the city’s actions violated what I’ve called in a prior post “the Contract Clause” of Article One, Section 10.  This clause provides that “[n]o State shall . . . pass . . . any . . . Law impairing the Obligation of Contracts.”  Sometimes people call this the “Contract” Clause, and sometimes they call it the “Contracts” Clause.  I did a search in the “allfeds” database of Westlaw, for instance, and found 900 cases that used the phrase “Contracts Clause” and 4800 cases using “Contract Clause.”  Should it be “Contracts” Clause or “Contract” Clause?  If you ask me, my answer would be: who gives a shit?

Well, the Fourth Circuit does, that’s who.  In a footnote, the Court said this, following its quotation and citation of the relevant clause:

The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the “Contract Clause” and the “Contracts Clause.”  Because the text of the Constitution speaks of the obligation of “contracts” in the plural, we will use that form of the noun to refer to the Clause in this opinion.

Wow, thanks for clearing that up!

Perhaps the most interesting thing about the opinion is that retired Justice Sandra Day O’Connor was on the panel, sitting by designation, as retired Supreme Court justices sometimes coolly do.  I wonder if this footnote was her idea.



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