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.
Weber, David P.
"Restricting the Freedom of Contract: A Fundamental Prohibition,"
Yale Human Rights and Development Law Journal: Vol. 16
, Article 2.
Available at: https://digitalcommons.law.yale.edu/yhrdlj/vol16/iss1/2