ECONOMY

348 the protection of liberty, property, and equality
Court upheld certain mortgage moratoria statutes intended to supply comprehensive
debtor relief against immediate foreclosure (Home Building & Loan Ass’n v. Blaisdell
1934). At that point, the court invoked larger police power justifications for social
stability to sustain some, but not all, of these statutes. Since then, the protection for
vested rights under individual contracts has ebbed and flowed, but there is today
no per se prohibition against the retroactive undoing of contractual protections for
completed transactions. In Usery v. Turner Elkhorn Mining Co. (1976), the court
upheld a retroactive imposition of liability on coal mining firms whose workers
suffered from black lung disease, even in the absence of any liability at the time of
the exposure. But in Eastern Enterprises v. Apfel (1998), a sharply divided court struck
down a compensation scheme that reached deeper into the past, and imposed more
substantial liabilities.
The distinction between Turner and Apfel is tenuous at best. Much may be said
for a simple rule that would ban all retroactive imposition of liability, and which
would comport with elementary notions of individual fairness. Economically, that
rule would stabilize expectations and reduce the level of political intrigue that arises
in an effort to redo the past by making it more difficult for one interest group to
shift costs to another. Nor does opening up closed transactions advance the health
and safety of workers by improving working conditions. Accordingly, any question of
compensation for injured workers or other individuals should be a matter of general
public support, as with the special fund for the victims of 9/11, whose validity has
been affirmed.Buttherewasnotsufficient political clout to attract contributions for
general revenues, either here, or in the much larger current dispute about compensation
for the victims of asbestos-related diseases, for whom a political solution has yet
to be worked out.
Economic liberties. The scope of state power was radically changed by the passage
of the Civil War amendments to the Constitution. On its face, the privileges or
immunities clause reads as though it limits the power of the state to pass prospective
regulation that limits the rights of citizens. (“No state shall make or enforce any law
which shall abridge the privileges or immunities of Citizens of the United States.”)
An important antebellum decision, Corfield v. Coryell (1823), held that Article IV
§ 2 (“The Citizens of Each state shall be entitled to all Privileges and Immunities
of Citizens of the several States”) meant that a state which conferred the right to
contract on its own citizens had to recognize an equal right in the citizen of another
state. In and of itself, that clause created a non-discrimination rule that did not protect
any prospective entitlement to enter into contracts. But the parallel language in the
Fourteenth Amendment reads as though it creates a right to contract for “citizens,”
but not for all “persons,” with its flat prohibition against certain forms of state
action. Nonetheless, in the epic Slaughterhouse Cases (1872), a sharply divided court
effectively read this clause out of the Constitution by holding that only the rights that
individuals held as United States citizens, such as the right to cross state boundary
lines or to petition the United States government, were covered by the clause.
Once the natural line of development was blocked, the defenders of economic
liberties turned to “liberty of contract” under the due process clause to gain their