"Passing a Complete Code": The Framers' Failed Effort to Nationalize Contract Law

Document Type

Article

Publication Date

2025

Abstract

That contract law is generally state law is well-accepted. Students mostly study state law, lawyers mostly cite state law, and judges mostly apply state law. Federal contract law exists, but as the Erie doctrine teaches, it is rarely relevant and applies in very few circumstances (e.g., government procurement contracts). In recent years, scholars have opened two lines of attack against this sort of account and have argued in favor of broader conceptions of federal authority. Some scholars have argued that the enumeration doctrine is flawed and that congressional powers are not strictly limited to those listed in the Constitution. Other scholars have argued that Erie was wrongly decided and should be overruled. However, recognizing the federal government’s general power in the discrete area of contract law does not require going so far. Assuming the enumeration doctrine and the Erie doctrine are both correct, historical evidence strongly suggests that the Constitution’s Commerce and Contract Clauses jointly empower Congress and the federal courts to superintend contract law throughout the nation.

This Article recovers a forgotten episode in America’s constitutional, political, and legal history: the framers’ failed effort to nationalize contract law. By revisiting the making of the Constitution, the ratification debates, and the Rules of Decision Act debate in the First Congress, this Article shows that the Constitution’s supporters and opponents broadly anticipated that the Constitution would enable the federal government to assume control of American contract law, or a substantial portion of American contract law, from the states. This recovered history has important implications for modern law. Among other things, it shows that Congress’s commerce power is more expansive than commonly believed and that federal courts have the power to review state contract regulations and set them aside, or not enforce them, if they contravene national or general contract law norms. Moreover, Congress has the power to enact a national code of contract law. Congressional enactment of a national code, such as the Uniform Commercial Code (UCC), could help clarify federal contract law. And if Congress wanted, it could go even further and enact a “complete code” to govern contracts between private parties. A complete code of the kind the framers envisioned would serve a number of important legal values, including certainty, uniformity, judicial economy, equality, autonomy, competition, and federalism.

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