David P. Weber


This article argues that the general right to contract, that is to say the

ability of one to obligate himself in exchange for another's obligation in return,

is a fundamental (or basic) though not all-encompassing right and

one that is subject to additional legal protections especially when limitations

are sought to be imposed discriminatorily or based on status rather

than capacity or subject matter of the contract. While post-Lochner decisions

have given states considerable leeway to regulate the scope of freedom

of contract, restrictions based on status, especially the status of unauthorized

immigrants, are invidious and go beyond the ambit of the type of

state regulation previously permitted. This article concludes that a prohibition

on the right to contract based solely on unauthorized immigration

status in the United States likely violates the Civil Rights Act and the

U.S. Constitution on preemption, due process and equal protection

grounds, and, to the extent executed contracts are involved, on Contract

Clause grounds as well. The article analyzes other circumstances in which

states and the federal government have previously restricted the right to

contract based on status, and finds in nearly every case that the restriction

of the right to contract affected members of a suspect class based on immutable

characteristics such as race, national origin, alienage, gender, or servitude.

While the Supreme Court has previously concluded immigration

status is not a suspect class, this article argues that states' illicit use of

immigration status as a proxy for race, national origin or alienage suffices

to meet the Arlington Heights test for disparate impact and therefore qualifies

for strict scrutiny.