The Supreme Court and Property Rights in the Progressive Era

The Journal of Supreme Court History, Forthcoming

Vanderbilt Law Research Paper No. 19-05

32 Pages Posted: 31 Jan 2019

See all articles by James W. Ely

James W. Ely

Vanderbilt University - Law School

Date Written: January 24, 2019


This article challenges the conventional narrative picturing the Supreme Court during the Progressive Era as an aggressive champion of the rights of property owners in the face of reform legislation. In fact, the Supreme Court largely accommodated the Progressive agenda, and in the process diminished the constitutional protection afforded property rights. The essay surveys the Court’s treatment of laws dealing with tenement reform, land use regulation, rent control, impairment of contracts, eminent domain and railroad regulation in the first two decades of the twentieth century. Progressives urged an expansive reading of the police power that trumped constitutional principles designed to safeguard individual property rights, and the Supreme Court proved broadly receptive to such arguments. It regularly upheld legislation restricting the rights of property owners, and in so doing paved the way for the subsequent emergence of New Deal jurisprudence. The myth of a Supreme Court frustrating the Progressive program is sharply at variance with the historical record, and rests upon a handful of atypical decisions. Indeed, the article suggests that scholars should explore why the Court did so little to vindicate the constitutional guarantees of property.

Keywords: Contract Clause, William R. Day, Oliver Wendell Holmes, Land Use Regulations, Rufus W. Peckham, Police Power, Progressive Era, Property Rights, Railroad Regulation, Rent Control, Supreme Court, Tenement Reform, Zoning

Suggested Citation

Ely, James W., The Supreme Court and Property Rights in the Progressive Era (January 24, 2019). The Journal of Supreme Court History, Forthcoming; Vanderbilt Law Research Paper No. 19-05. Available at SSRN:

James W. Ely (Contact Author)

Vanderbilt University - Law School ( email )

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

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