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BRENNAN, J., dissenting

431 U.S.

pansion of rapid transit was not oppressively or capriciously chosen; rather, it squarely complies with the commands embodied by Congress in several contemporaneous national laws. Supra, at 36-37. By invalidating the 1974 New Jersey repealand, by necessity, like action by New York-the Court regrettably departs from the virtually unbroken line of our cases that remained true to the principle that all private rights of property, even if acquired through contract with the State, are subordinated to reasonable exercises of the States' lawmaking powers in the areas of health (Fertilizing Co. v. Hyde Park, 97 U. S. 659 (1878); Butchers' Union Co. v. Crescent City Co., 111 U. S. 746 (1884)); environmental protection (Hudson Water Co. v. McCarter, 209 U. S. 349 (1908); Manigault v. Springs, 199 U. S. 473 (1905); cf. Henderson Co. v. Thompson, 300 U. S. 258, 267 (1937); Illinois Central R. Co. v. Illinois, 146 U. S. 387, 452-453 (1892)); and transportation (New Orleans Pub. Serv. v. New Orleans, 281 U. S. 682 (1930); Erie R. Co. v. Public Util. Comm'rs, 254 U. S. 394 (1921); Denver & R. G. R. Co. v. Denver, 250 U. S. 241 (1919); Atlantic Coast Line R. Co. v. Goldsboro, supra; Northern Pac. R. Co. v. Duluth, 208 U. S. 583 (1908); Chicago, B. & Q. R. Co. v. Nebraska ex rel. Omaha, 170 U. S. 57 (1898); New York & N. E. R. Co. v. Bristol, 151 U. S. 556 (1894)). In its disregard of these teachings, the Court treats New Jersey's social and economic policies with lesser sensitivity than former Members of this Court who stressed the protection of contract and property rights. Even Mr. Justice Butler recognized that the Contract Clause does not interfere with state legislative efforts in behalf of its citizens' welfare unless such actions.

"are . . . clearly unreasonable and arbitrary

[And in applying this standard] [u]ndoubtedly the city, acting as the arm of the State, has a wide discretion in determining what precautions in the public interest are necessary or appropriate under the circumstances." New Orleans Pub. Serv., supra, at 686.

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BRENNAN, J., dissenting

Thus, with at best a passing nod to the long history of judicial deference to state lawmaking in the face of challenges under the Contract Clause, see ante, at 23 n. 20, the Court today imposes severe substantive restraints on New Jersey's attempt to free itself from a contractual provision that it deems inconsistent with the broader interests of its citizens. Today's decision cannot be harmonized with our earlier cases by the simple expedient of labeling the covenant "purely financial," ante, at 25, rather than a forfeiture of "an essential attribute of [New Jersey's] sovereignty," ante, at 23. As either an analytical or practical matter, this distinction is illusory. It rests upon an analytical foundation that has long been discarded as unhelpful.15

And as a

15 Among other difficulties, the question-begging attempt to categorize inviolable legislation powers vis-à-vis the Contract Clause depends upon a conception of state sovereignty that is both simplistic and unpersuasive. We are told that the Contract Clause "does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty," ante, at 23, but in applying this principle, the Court finds that the States' "taxing and spending powers," unlike the power of eminent domain, lie outside this rule, ante, at 24. Before today, one might well have supposed that the States' authority to tax, spend money, and generally make basic financial decisions is among the most important of their governmental powers. Indeed, only last Term, this Court announced that a State's decision to pay its employees less than the minimum wage-a decision of far less importance to the citizens generally than efforts to derive funding for improving the facilities that directly and vitally affect their health and safety-is immune from federal regulation under the Commerce Clause, an authority previously thought to be virtually plenary in nature. Court there reasoned that the minimum-wage decision falls within the sovereign powers of "States qua States." National League of Cities v. Usery, 426 U. S. 833, 847 (1976). One may rightfully feel unease that the Court is in the process of developing a concept of state sovereignty that is marked neither by consistency nor intuitive appeal.

In any event, in addition to resting on a most dubious conception of sovereignty, the Court's effort to demonstrate that the States are free to contract away their taxing and spending powers-and hence free "to enter into effective financial contracts" notwithstanding later exercises of the police power-must fail because it is untenable. While it is true that

BRENNAN, J., dissenting

431 U.S.

purely practical matter, an interference with state policy is no less intrusive because a contract prohibits the State from resorting to the most realistic and effective financial method of preserving its citizens' legitimate interests in healthy and safe transportation systems rather than directly proscribing the States from exercising their police powers in this area. The day has long since passed when analysis under the Contract Clause usefully can turn on such formalistic differences. Cf. Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 438 (1934).

Nor is the Court's reading of earlier constitutional doctrine aided by cases where the Contract Clause was held to forestall state efforts intentionally to withhold from creditors the unpaid interest on, Von Hoffman v. City of Quincy, 4 Wall. 535 (1867), or principal of, Louisiana ex rel. Hubert v. New Orleans, 215 U. S. 170 (1909); Wolff v. New Orleans, 103 U. S. 358 (1881), outstanding bonded indebtedness. Beyond dispute, the Contract Clause has come to prohibit a State from embarking on a policy motivated by a simple desire to escape its financial obligations or to injure others through "the repudiation of debts or the destruction of contracts or the denial of means to enforce them." Home Bldg. & Loan Assn. v. Blaisdell, supra, at 439. Nor will the Constitution permit New Jersey v. Wilson, 7 Cranch 164 (1812) (Contract Clause precludes a legislature from repudiating a grant of tax exemption) has never explicitly been overruled, subsequent cases have almost uniformly avoided adherence to either its reasoning or holding. See, e. g., New York ex rel. Clyde v. Gilchrist, 262 U. S. 94 (1923); Seton Hall College v. South Orange, 242 U. S. 100 (1916); Rochester R. Co. v. Rochester, 205 U. S. 236 (1907); Wisconsin & M. R. Co. v. Powers, 191 U. S. 379 (1903); Morgan v. Louisiana, 93 U. S. 217 (1876). These cases appreciate, as today's decision does not, that the operative consideration for constitutional purposes is not whether a contract can or cannot be branded as "financial." Rather, in adjudging the constitutionality of "an exercise of the sovereign authority. of the State," Seton Hall College, supra, at 106-be it financial or otherwise the Contract Clause tolerates reasonable legislative Acts in the service of the broader interests of the society generally.

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BRENNAN, J., dissenting

a State recklessly to pursue its legitimate policies involving matters of health, safety, and the like with "studied indifference to the interests of the mortgagee or to his appropriate protection . . . . W. B. Worthen Co. v. Kavanaugh, 295 U. S. 56, 60 (1935). In this regard, the Court merely creates its own straw man when it characterizes the choice facing it today either as adopting its new, expansive view of the scope of the Contract Clause, or holding that the Clause "would provide no protection at all." Ante, at 26. The Constitution properly prohibits New Jersey and all States from disadvantaging their creditors without reasonable justification or in a spirit of oppression, and New Jersey claims no such prerogatives. But if a State, as here, manifestly acts in furtherance of its citizens' general welfare, and its choice of policy, even though infringing contract rights, is not "plainly unreasonable and arbitrary," Denver & R. G. R. Co. v. Denver, 250 U. S., at 244, our inquiry should end:

"The question is . . . whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end." Home Bldg. & Loan Assn. v. Blaisdell, supra, at 438.

The Court, however, stands the Contract Clause completely on its head, see supra, at 45, and both formulates and strictly applies a novel standard for reviewing a State's attempt to relieve its citizens from unduly harsh contracts entered into by earlier legislators: 16 Such "an impairment may be con

16 The Court makes clear that it contemplates stricter judicial review under the Contract Clause when the government's own obligations are in issue, but points to no case in support of this multiheaded view of the scope of the Clause. See ante, at 25-26. As noted previously, see n. 13, supra, this position finds no support in the historical rationale for inclusion of the Contract Clause in the Constitution. And it is clear that the Court's citation to Perry v. United States, 294 U. S. 330 (1935), see ante, at 26 n. 25, offers no support for its rewriting of history. In that case, one of the Gold Clause Cases, Perry challenged the constitution

BRENNAN, J., dissenting

431 U.S.

stitutional if it is reasonable and necessary to serve an important public purpose." Ante, at 25. Not only is this apparently spontaneous formulation virtually assured of frustrating the understanding of court and litigant alike," but it

ality of a congressional enactment which authorized the redemption of outstanding United States gold bonds by payment of legal tender currency rather than "by the payment of 10,000 gold dollars each containing 25.8 grains of gold, .9 fine,'" 294 U. S., at 347, the value of the dollar in gold when the bonds were acquired. Perry complained that inflation had devalued the worth of legal tender with respect to gold and, therefore, claimed financial injury by the conversion. The Government defended its actions on the ground that the gold clause obstructed Congress' express power to "regulate the Value" of money, Art. I, § 8, and, accordingly, argued that Congress was free to repudiate the gold standard under that power. Although Perry ultimately was denied recovery, the Court found that the authority to "regulate the Value" of money, while permitting Congress "to control or interdict the contracts of private parties" with regard to the legal exchange rate, 294 U. S., at 350, did not include the power to repudiate the Government's own obligations, which were governed by entirely different constitutional provisions: E. g., Congress may "borrow Money on the credit of the United States," Art. I, §8, cl. 2, and "The validity of the public debt of the United States . . . shall not be questioned," Amdt. 14, § 4. Thus the differential standard in Perry emerged from the collision of competing grants of power to the Federal Government, and did not purport to suggest that the Contract Clause or its federal counterpart, the Fifth Amendment-standing alone would produce different standards for reviewing governmental interference with public and private contractual obligations.

17 The Court's newly announced standard of review, like all such formulations, can merely hope to suggest the direction that a court's inquiry should take, and the relative weight to be afforded a constitutional right. But particular words like "reasonable" and "necessary" also are fused with special meaning, for judges have long experience in applying such standards to constitutional contexts. Reasonableness generally has signified the most relaxed regime of judicial inquiry. See, e. g., Dandridge v. Williams, 397 U. S. 471, 485 (1970) ("If the classification has some 'reasonable basis,' it does not offend the Constitution"). Contrariwise, the element of necessity traditionally has played a key role in the most penetrating mode of constitutional review. See e. g., Shapiro v. Thompson, 394 U. S. 618, 634 (1969) (a classification which burdens

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