Journal of Supreme Court History

P ro p e rty R ig h ts a n d th e S u p re m e C o u rt in th e G ild e d A g e KJIHGFEDCBA JAMES W. ELY, JR.zyxwvutsrqponm Any atte m p t to as s e s s the p ro p e rty -rights jurisprudence of the Supreme Court in the Gilded Age (1870-1900) must confront several difficulties. First, the late nineteenth century was an era ofsweeping economic and social changes that transformed American society. In response to rapid industrialization and urbanization, the states and eventually the federal government began to more aggres­ sively intervene in the economy. In response, lawyers increasingly challenged such regula­ tory legislation, arguing that the laws ex­ ceeded legislative authority under the Constitution. Consequently, the Supreme Court under ChiefJustices Morrison R. Waite and Melville W. Fuller had to wrestle with novel legal issues relating to the rights of property owners. The range ofproperty-rights decisions is impressive, covering bond repu­ diations, rate regulations, debtor-creditor relations, contractual freedom, workplace regulations, labor law, eminent domain, and taxation. These rulings invoked various provisions of the Constitution, including the Contract Clause, the Due Process Clause of the Fourteenth Amendment, the Takings Clause of the Fifth Amendment, and the “direct tax” clauses. To distill common themes from this huge outpouring ofdecisions is a challenging task. Second, modem historians are not writ­ ing on a fresh slate. Scholars associated with the Progressive movement of the early twentieth century fashioned a durable—if cartoonist and one-sided—image of Gilded Age jurists as either out of touch with new realities or, even worse, as craven handmai­ dens of business enterprise. These jurists, we are told, sought to impose a rigid laissez-faire regime on American society.1 Although this once-common tale has been sharply assailed in recent years,2 it retains considerable influence in the academy and continues to color thinking about the legal culture of the late nineteenth century. I submit that we should set aside such preconceptions and take a fresh look at the property-rights jurispru­ dence of the Gilded Age. I argue that a very different understanding ofthat era will emerge from careful investigation. P R O P E R T Y R IG H T S IN T H E G IL D E D A G E KJIHGFEDCBA 331zyxwvutsrqpon Third, the Su p re m e Co u rt Ju s tice s o fthe late nine te e nthce ntu rydid no t m archin lo cks te p . The y diffe re das to the de gre eo f p ro te ctio n that s ho u ldbe affo rde dp ro p e rty o wne rsand as to the ap p ro p riate ro o mfo r go ve rnm e ntal re gu latio n. Altho u ghall o fthe Ju s tice ss hare d to s o m e de gre e the bas ic valu e s o f lim ite dgo ve rnm e nt and p rivate p ro p e rty , the ywe refo rthe m o s t p artp ractical m e n, no tco ns titu tio nal the o ris ts . One m u s t be care fu lno t to attribu te to the Ju s tice san e labo ratejudicial philosophy.3 In addition, their dedication to guarding property rights was also tempered by a strong commitment to federalism and state autonomy.4 Despite these complexities, I contend that a general pattern emerges from the Supreme Court’s property-rights decisions. My thesis can be simply stated: the core principle of the Court in the Gilded Age was the protection of private property as a means to uphold individual liberty against governmental over­ reaching. As Michael J. Phillips cogently pointed out, “the Court’s aim was to protect liberty and property against arbitrary or unreasonable restraints.”5 This commitment to liberty was reinforced by a second theme, the importance ofsecure property rights as the basis for economic growth. Moreover, I maintain that there was substantial continuity between the Court...