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Sunday, May 10, 2020

Are No-Fault Divorce Laws Unconstitutional?

I pose this question to understand how the Constitution should be read rather than as a litigation question.

In Dartmouth College v. Woodward, the Supreme Court held that the Contracts Clause barred New Hampshire from rewriting Dartmouth's corporate charter to change the school from a private institution into a state college. (This case gave us Daniel Webster's most famous oral argument.) There were three opinions (one by Chief Justice Marshall, one by Bushrod Washington, and one by Joseph Story).

New Hampshire's most ingenious argument was the Contracts Clause could not be read as broadly as Dartmouth suggested because such a reading would mean that state divorce laws were unconstitutional. A divorce law, of course, does interfere with the obligations of a marriage contract by allowing people to end them.

This argument was taken very seriously. The Chief Justice responded in his opinion that state divorce laws were valid because they required fault. In that sense, they were no different from general contract principles that released people from their obligations if there was fraud or some sort of sort of serious wrongdoing. Whether a no-fault divorce law would be valid was, he said, a difficult question that need not be decided. Justice Story instead stated that he thought a no-fault divorce statute would be unconstitutional, if one were ever enacted. (Washington declined to take on this difficult issue, as it was unnecessary to decide the case.)

The Contacts Clause was read out of the Constitution long ago by the Supreme Court. Still, what about the original understanding of the Contracts Clause? What would the Framers have thought about no-fault divorce? I don't know the answer, but it's a great question. Then take the next step. What did the Framers of the Fourteenth Amendment think about this? Anything different?

In 1879, the Court decided Hunt v. Hunt and issued in a one paragraph per curium opinion that quoted selectively from the Chief Justice's Dartmouth College decision. The Court Reporter summarized Hunt's holding as: "The contract of marriage is not a contract within the meaning of the provision in the Constitution prohibiting States from impairing obligations of contracts." The opinion in Hunt did not say that, but that's how it was understood afterwards.    

Posted by Gerard Magliocca on May 10, 2020 at 08:06 AM | Permalink


When two people sign a marriage “contract” stating certain duties and those include financial obligations and raising children, and one of those persons is committing fraud or other harmful behavior to the other person, they should be held accountable for breach of contract. If the government can intercept people’s salaries and assign custody and support based on this union they should also enforce any violation which is done in direct opposition to the agreement. Otherwise marriage simply has no value or meaning. If the vows people make when they sign the agreement can not be enforced then they have no meaning. They are not valid. It seems the only purpose is for taxes or population control. Marriage itself is fraudulent and a form of entrapment based on an unenforceable agreement. Marriage itself is a breach of contract law as it cannot be protected in no fault States. Of course this is not explained to the people in their 20’s getting married.

Posted by: Shannon jamieson | Oct 12, 2020 6:45:45 PM

The issue was addressed and resolved (in my view correctly) in 1888 by Maynard v. Hill, addressing a divorce enacted by the Oregon territorial legislature:

"Assuming that the prohibition of the federal Constitution against the impairment of contracts by state legislation applies equally, as would seem to be the opinion of the supreme court of the territory, to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition."

That is, Maynard essentially holds that marriage is a status created by legislation, not a contract.

Posted by: JHW | May 11, 2020 10:15:39 AM

"The Contacts Clause was read out of the Constitution long ago by the Supreme Court."

That's an almost amusing simplification of what happened.

Posted by: Joe | May 10, 2020 1:35:30 PM

Here to case cited:


Posted by: El roam | May 10, 2020 12:47:45 PM

Just to cite Justice Field ( dissenting) in the case of:


Here quoting:

The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in place where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude.

And, most importantly, I quote:

A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude.

End of quotation:

So, this is effectively, the meaning, of being bound, for the rest of your life, to the same location, bound to the same husband or wife, having no other possibility to pursue other trades or calling as cited. So, effectively, there is no really "no- fault divorce" in subjective terms.


Posted by: El roam | May 10, 2020 12:40:00 PM

Just illustration to illegal contract:

"Bovard v. American Horse Enterprises, Inc"

Hereby to brief of the case, and link therein to the case:


Posted by: El roam | May 10, 2020 10:00:55 AM

Interesting, but, no real issue actually. This is because of the simple fact, that public policy, must be considered here. The constitution, provides abstract principles by nature, details ( like in every legislation) are left to inferior legislation ahead. So, suppose, that one contract is violating public policy, or the law itself. It can't hold. Suppose, contract stipulating that the winner of certain bet, shall behead the loser. Surly, it is illegal contract. Surly, contradicts public policy. The court, shall have to annul it whatsoever. No matter, what the constitution dictates.

So, one woman , can't live as example, under cruel treatment of the husband. So, divorce is warranted. But, even when dealing with no- fault divorce, it is the same in fact. Pursuit of happiness, liberty, is fundamental constitutional principal. Would it matter then ? A person feels, unhappy, under severe misery, oppressed etc... Those are subjective feelings or perceptions. One person, can't be bound forever,to such, at least, constructive servitude.

Such notion, can't be reconciled with: Freedom, liberty, pursuit of happiness, self fulfillment etc....

This has to do with public policy. Distributing drugs, can't in noway, become subject of contract. So, the same. Fault, is very relative notion.


Posted by: El roam | May 10, 2020 9:41:47 AM

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