Ogden V. Saunders - Dissent

Dissent

Chief Justice John Marshall authored the dissenting opinion. He held that the Contract Clause gave the federal legislature the exclusive power over bankruptcy laws, rejecting the argument that state laws became part of contracts signed within the state thereafter. Marshall was joined in his dissent by Associate Justices Gabriel Duvall and Joseph Story. Near the end of his opinion the Chief Justice recapitulates what is perhaps the central contention of his opinion: "contracts derive their obligation from the act of the parties, not from the grant of government". The Chief Justice in the course of his opinion uses the "will theory of contract". The fact that the state may define how contracts can be formed, how defaults can be remedied, and even exclude from the outset certain types of contract, usurious ones for example, does not make contract a creature of the state. The obligation of any particular contract is what the parties determine it to be. Thus, if Ogden owes Saunders a certain amount in legal tender coin, it is not within the authority of the state, under the US Constitution, to alter that obligation so that, for example, Ogden may simply hand over his property to Saunders in settlement of the debt.

This case was the only one in his long career when Marshall found himself on the losing side in a constitutional case. He took this opportunity to set forth his general principles of constitutional interpretation:

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; — is to repeat what has been already said more at large, and is all that can be necessary.

In his Ogden dissent, Marshall also adopted a definition of the word "law" that would later be denounced by the individualist anarchist Lysander Spooner.