The Sacredness of Private Property
The study of constitutional history has long focused on developments at the national level, with emphasis on the United States Supreme Court. While this is understandable at first glance, such a concentration threatens to distort our comprehension of the constitutional past. This is particularly true in the field of economic rights. State constitutions of the Revolutionary Era anticipated provisions incorporated into the federal Bill of Rights. Yet under the ruling in Barron v. Baltimore (1833) the Bill of Rights applied only to the actions of the national government. Consequently, before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts. They were frequently called upon to define property and contractual rights and paved the way for subsequent Supreme Court decisions. The infrequent study of state constitutional history, however, reflecting the fashionable attitude of current constitutional scholarship, gives little attention to the rights of property owners. Seeking to fill this gap in the literature, this article explores state constitutionalism before the Civil War as it pertains to economic rights. It argues that antebellum state courts played a crucial and underappreciated, if at times imperfect, role in defending property and contractual rights from legislative assault. Articulating a broadly shared judicial commitment to the rights of owners, the Supreme Court of Georgia emphatically proclaimed in 1851: “The sacredness of private property ought not to be confided to the uncertain virtue of those who govern.”
