More on Original Understanding of the Bankruptcy Clause:

Professor Bruce Mann has taken issue with my characterization of the original understanding of the Bankruptcy Clause of the Constitution. Having re-read my post, and read his comment, I’m not sure that I understand what he says in his comment that is different from what I said in my post. Perhaps there is a difference in language or emphasis between them, but I’m not sure I see what is “historically inaccurate” about what I said versus what he said.

In my original post I said that the Bankruptcy Clause was both a pro-creditor and pro-debtor provision. My comments in the post were focused on the statement in the article that I linked. The article was about consumer bankruptcy, and it states, “The Founding Fathers believed that bankruptcy relief was every citizen’s right” and then implies that this is the reason it was included in the Constitution in Article I, section 8. In my post, I focused on the pro-creditor aspects of the Bankruptcy Clause because this is the aspect of it that is most unfamiliar to modern readers (and so I thought would be most interesting to VC readers), but I also state that it had pro-debtor aspects.

To the extent that the Bankruptcy Clause was a pro-debtor provision, it is clear that it was intended for merchants, but it was unclear whether it applied to consumer debtors. I clearly note this pro-debtor purpose, especially for merchants, most expressly in the second paragraph of my excerpt from my article on the topic, but elsewhere as well. I understand Mann to be saying the same thing. He writes, “Although bankruptcy in Great Britain applied only to commercial debtors, bankruptcy statutes in the American colonies and states were mixed–some applied only to debtors in commercial occupations, others applied to all debtors.” So, in other words, the British definition of the term took the narrower meaning, and some colonies followd the narrower interpretation. I noted the same thing in my post:

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