38 Journal of Supreme Court History, 330 (2013)

Vanderbilt Law and Economics Research Paper No. 12-17

Vanderbilt Public Law Research Paper No. 12-19

27 Pages Posted: 29 May 2012 Last revised: 25 Jan 2018

James W. Ely

Vanderbilt University – Law School

Date Written: April 24, 2012

Abstract

This article challenges the conventional wisdom about the property-rights jurisprudence of the Supreme Court in the period 1870-1900. It asserts that the Court was animated to protect the rights of property owners as a means of upholding individual liberty against governmental overreaching. The justices saw private property as essential for the enjoyment of liberty. This commitment to individualistic values was reinforced by utilitarian considerations. The Court repeatedly stressed the vital role of property and contractual rights as the basis of economic growth. In upholding property right the justices drew upon the long-standing Anglo-American tradition of property-conscious constitutionalism. The essay concluded that there was a close affinity between the views of the framers of the Constitution concerning the sanctity of property rights and the jurisprudence of the Gilded Age.

Keywords: Gilded Age, property rights, takings clause, eminent domain, contracts, contract clause, liberty of contract, “class” legislation, laissez-faire, liberty, taxation, Stephen J. Field, Melville W. Fuller, Morrison R. Waite, William Strong, John Marshall Harlan, Samuel F. Miller, David J. Brewer, Henry

Suggested Citation:

Ely, James W., Property Rights and the Supreme Court in the Gilded Age (April 24, 2012). 38 Journal of Supreme Court History, 330 (2013), Vanderbilt Law and Economics Research Paper No. 12-17, Vanderbilt Public Law Research Paper No. 12-19, Available at SSRN: https://ssrn.com/abstract=2070275