Home Savings & Loan Association v Blaisdell (1934) is considered to be one of the great Supreme Court opinions, yet it doesn't appear in all of the casebooks.
Here's an exchange from the Conlawprofs list, commenting:
I agree with [SL] that the pair of opinions in Blaisdell is one of the greatest in the Con Law canon. In fact, Brandeis wrote Sutherland:
"My dear Sutherland,
This is one of the great opinions in American constitutional law.
Regretfully, I adhere to my error."
And (I suspect Sandy won't mind my saying this): Most Con Law books don't touch Blaisdell because nobody spends any time on the Contracts Clause. But if one takes an historical approach to the materials, Blaisdell fits in beautifully, and it makes for excellent classroom discussion.
[RF]
Here's another, from ML:
Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth while, -a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.
[A bunch of ostensible analogies follow, and then . . . .]
The Legislature cannot 'bargain away the public health or the public morals.' Thus the constitutional provision against the impairment of contracts was held not to be violated by an amendment of the state Constitution which put an end to a lottery theretofore authorized by the Legislature. Stone v. Mississippi, 101 U.S. 814 , 819. See, also, Douglas v. Kentucky, 168 U.S. 488 , 497-499, 18 S.Ct. 199; compare New Orleans v. Houston, 119 U.S. 265, 275 , 7 S.Ct. 198. The lottery was a valid enterprise when established under express state authority, but the Legislature in the public interest could put a stop to it. A similar rule has been applied to the control by the state of the sale of intoxicating liquors. Boston Beer Company v. Massachusetts, 97 U.S. 25, 32 , 33 S.. See Mugler v. Kansas, 123 U.S. 623, 664 , 665 S., 8 S.Ct. 273. The states retain adequate power to protect the public health against the maintenance of nuisances despite insistence upon existing contracts. Northwestern Fertilizing Company v. Hyde Park, 97 U.S. 659 , 667; Butchers' Union Company v. Crescent City Company, 111 U.S. 746, 750 , 4 S.Ct. 652. Legislation to protect the public safety comes within the same category of reserved power. Chicago, B. & Q.R.R. Co. v. Nebraska, 170 U.S. 57, 70 , 74 S., 18 S.Ct. 513; Texas & N.O.R.R. Co. v. Miller, 221 U.S. 408, 414 , 31 S.Ct. 534; Atlantic Coast Line R.R. Co. v. Goldsboro, 232 U.S. 548, 558 , 34 S.Ct. 364. This principle has had recent and noteworthy application to the regulation of the use of public highways by common carriers and 'contract carriers,' where the assertion of [290 U.S. 398, 437] interference with existing contract rights has been without avail. Sproles v. Binford, 286 U.S. 374, 390 , 391 S., 52 S.Ct. 581; Stephenson v. Binford, supra.
In other words, the opinion is based on the notion that the law (and contract) have a built-in presumptive exception for emergencies -- that the contractual obligation simply doesn't apply where it would harm public health or morals. Of course, many would argue with this, or reason that it's simply recognizing an "emergency" exception to the CC in sheep's clothing; but I think it interesting that the Court was not willing simply to rely on the notion that the Constitution bows to emergency or that "effective government is the highest constitutional duty," superseding mere trfles such as the CC.
2. Dennis asks whether there isn't an analogy between Blaisdell and the Bush Administration's claims for expansive war powers, i.e., "that the bedrock constitutional principle on which all others depend is national security, which creates any necessary executive power."
One major difference: In Blasidell, the emergency was recognized by the state legislature, which enacted the Minnesota Mortgage Moratorium Law. In the recent disputes w/r/t the Bush Administration, the question is not whether the federal government has emergency powers to act even where the Constitution might appear to impose a substantive limit.
It is, instead, whether the Executive can unilaterally decide to violate enacted laws, invoking "emergency," when it has been unable or unwilling to persuade the legislature that such an emergency exists that warrants such a deviation from the rules (previously) laid down.
That is to say, in these cases there is a disagreement between the political branches on the need for emergency measures, and the question is whether and why the President's view on the question of emergency should excuse a deviation from the ordinary and prescribed means of dealing with such emergencies, namely, a law enacted by bicameralism and presentment.
[End]
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Note that Blaisdell comes up in the early years of the Great Depression and may be viewed as a precursor to the Revolution of 1937, when the Conservatives finally give way, at long last, and we thank the Conlaw Gods for their much-delayed mercy, to their more liberal brethren, which saves the country, of course...
Why don't we see what's great about it, below: