558
Breyer, J., dissenting
Iron & Metal Co., 335 U. S. 525, 535 (1949) (repudiating the "Allgeyer-Lochner-Adair-Coppage constitutional doctrine"). As the plurality points out, ante, at 533, an unfair retroactive assessment of liability upsets settled expectations, and it thereby undermines a basic objective of law itself. See, e. g., 2 J. Story, Commentaries on the Constitution § 1398 (5th ed. 1891) (criticizing retrospective laws as failing to "accord with . . . the fundamental principles of the social compact"); ibid. (retroactive legislation invalid "upon principles derived from the general nature of free governments, and the necessary limitations created thereby"); General Motors Corp. v. Romein, 503 U. S. 181, 191 (1992) ("Retroactive legislation . . . can deprive citizens of legitimate expectations"); Fletcher v. Peck, 6 Cranch 87, 143 (1810) (Johnson, J., concurring) (suggesting that retroactive legislation is invalid because it offends principles of natural law).
To find that the Due Process Clause protects against this kind of fundamental unfairness—that it protects against an unfair allocation of public burdens through this kind of specially arbitrary retroactive means—is to read the Clause in light of a basic purpose: the fair application of law, which purpose hearkens back to the Magna Carta. It is not to resurrect long-discredited substantive notions of "freedom of contract." See, e. g., Ferguson v. Skrupa, 372 U. S. 726, 729- 732 (1963).
Thus, like the plurality I would inquire if the law before us is fundamentally unfair or unjust. Ante, at 534-537. But I would ask this question because, like Justice Kennedy, I believe that, if so, the Coal Act would "deprive" Eastern of "property, without due process of law." U. S. Const., Amdt. 14, § 1.
II
The substantive question before us is whether or not it is fundamentally unfair to require Eastern to make future payments for health care costs of retired miners and their families, on the basis of Eastern's past association with these
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