SELFISH INTENTIONS - K-REx - Kansas State University

Constitution. In his dissenting opinion, Justice Story told legislators that private divorce acts
might be a violation of the contract clause of the Constitution which explicitly barred legislative
interference in contractual obligations. VanBurkleo comments, “While arguing Dartmouth,
counsel for New Hampshire had observed in passing that legislative divorce threatened the rights
inherent in marital contracts. Story seemed to agree: a married couple had property rights in
their union” rights that legislative interference threatened. 35 Story’s main concern was the
“rights” of husbands, but he also noted that marriage was “a civil institution” that occupied a
special status under the law.
Before the issue was decided most legislatures began to move away from the practice
because of its sheer impracticability. Cases presented to state legislatures for divorce often
required a great deal of investigation before the case could be decided. These cases diverted the
legislators’ time and energy away from state issues and forced them to focus on divorce
proceedings. Riley quotes a Louisiana legislator who in 1806 “recommended that the territorial
legislature be relieved of ‘the irksome, disagreeable and laborious task, or tedious investigation’
so that it could pursue ‘objects of greater importance.’” 36 Similarly, by 1827, Virginia legislators
were so bombarded with requests for divorce each legislative session, they began to shift part of
the divorce petitions over to the chancery courts. 37 By 1827, divorce jurisdiction in Virginia
began to shift from legislative to courts of chancery in order to hear cases of marital upheaval
and to relieve some of the congestion of divorce legislation. By 1850, the legislature had turned
all power for granting divorces over to the chancery courts. 38 Three years after this shift in
jurisdiction, the Virginia legislature adopted new legislation that expanded the grounds for
35 Ibid.
36 Riley, 56.
37 Chancery courts are also known as courts of equity.
38 Riley, 51-52.
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