‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War

45 Pages Posted: 16 Aug 2015 Last revised: 25 Jan 2018

See all articles by James W. Ely

James W. Ely

Vanderbilt University - Law School

Date Written: August 14, 2015

Abstract

This essay explores state constitutional law before the Civil War pertaining to economic rights. It argues that antebellum state courts played a crucial and underappreciated role in defending property and contractual rights from legislative assault. Before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts and implicated state constitutional law. The essay considers how state courts shaped takings and due process jurisprudence, often anticipating subsequent decisions by the Supreme Court of the United States. They were the first, for example, to consider the scope of “public use” and the amount of “just compensation” when government sought to acquire property. Moreover, they grappled with the extent to which the due process guarantee in state constitutions conferred substantive protection to the rights of property owners. Despite the pivotal role of the Supreme Court in fashioning contract clause jurisprudence, state courts heard far more contract clause cases and significantly impacted the formation of law in this field as well. State constitutionalism was vitally important to the development of property owners.

Keywords: consequential damages, contract clause, debt relief laws, due process, economic rights, Fifth Amendment, just compensation, property rights, public use, state constitutional law, takings jurisprudence

Suggested Citation

Ely, James W., ‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War (August 14, 2015). 9 NYU Journal of Law & Liberty, 620 (2015); Vanderbilt Public Law Research Paper No. 15-21; Vanderbilt Law and Economics Research Paper No. 15-17. Available at SSRN: https://ssrn.com/abstract=2644265

James W. Ely (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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