Rights Evolution: Moving Away from the Property Paradigm

Holding: A state legislature cannot take away rights that have vested by repealing a law that is essentially a contract because the subsequent (third party) purchasers were innocent and had no notice of the fraud. Art. 1. s. 10 of the Constitution declares that no State shall make any law impairing the obligation of contracts (162). "Once an interest had vested in an individual—once it belonged to her—it was immune from government divestment" (169).

Facts: In 1795, a majority of the Georgia legislature had been bribed to convey some 35 million acres of state land to private companies at the bargain price of about 11/2 ¢ per acre. In 1796, the legislature rescinded the grant, but not before large parcels had been sold to Northern investors. A suit on a warranty of title presented the question whether the 1796 rescission could affect the rights of bona fide purchasers not themselves part of the initially fraudulent scheme and, according to Marshall’s opinion, without ‘‘notice’’ of it.

Reasoning: A state legislature cannot take away rights that have vested by repealing a law that is essentially a contract. Generally, a state legislature has the authority to repeal any legislation that the state legislature had the authority to pass. However, some legislation is, by its nature, a contract. Fraudulent contracts, including conveyances of land, may be set aside between the original parties, but a third party who subsequently purchased land, without notice of the fraud, has a vested right in the land that cannot be set aside. Otherwise, all land titles would be insecure, and all commerce would be seriously disrupted. Once an act is done under a law, that act cannot be undone, even if the law is repealed. In this case, the Georgia legislature attempted to set aside conveyances to third parties who purchased land without notice of the original fraud.

Holding: New Hampshire could not unilaterally modify a private
institution’s charter to place it under public control because Art. 1. s. 10 of the Constitution declares that no State shall make any law impairing the obligation of contracts. It does not matter that Dartmouth's charter was a Royal Charter prior to the American Revolution. The Revolution did not void private contracts.

Facts: In 1769 King George III of Great Britain granted a charter to Dartmouth College. This document spelled out the purpose of the school, set up the structure to govern it, and gave land to the college. In 1816, over thirty years after the conclusion of the American Revolution, the legislature of New Hampshire attempted to alter Dartmouth's charter in order to reinstate the College's deposed president, placing the ability to appoint positions in the hands of the governor, adding new members to the board of trustees, and creating a state board of visitors with veto power over trustee decisions. This effectively converted the school from a private to a public institution.

Holding: The Bill of Rights, specifically the Fifth Amendment’s guarantee that government takings for public use require just compensation, are only restrictions on the federal government and do not apply to state or local governments.

Facts: John Barron (plaintiff) owned and operated a wharf in the city of Baltimore. He brought suit against the Mayor and City Council of Baltimore (defendants), alleging that when completing street construction, the City had ruined his wharf by diverting streams and making the water too shallow for boats. Barron sued for damages, seeking to invoke the Takings Clause of the Fifth Amendment.

Reasoning: The United States Constitution was formed to create a government for individuals in the union as a whole, not for the creation of governments of individual states. Each state adopted its own constitution to create a state government. Thus, the amendments to the U.S. Constitution necessarily only apply to the federal government, which it created. While the amendments were passed as restrictions on federal government powers, nothing in their text suggests these amendments were also meant to be applied as limitations on state government powers. If Congress had wished to bind states by constitutional amendments, it would have used language in the form of ‘‘No state shall.’’ Antifederalists wanted the Bill of rights, so it obviously does not give the federal government more power over states.

Bad pro-slavery court.

Holding: People of African descent brought to the United States and held as slaves, as well as their descendants (either slave or free), are not considered citizens of the United States and are not entitled to the protections and rights of the Constitution.

OVERTURNED BY 14th AMENDMENT

Facts: Dred Scott (plaintiff) was an African American man born a slave in Virginia in the late 1700s. In 1830, he was taken by his owners to Missouri and purchased by Army Major John Emerson in 1832. Emerson took Scott with him on various assignments in Illinois and Wisconsin Territory, areas that outlawed slavery based on Congress’s enactment of the Northwest Ordinance of 1787 and the Missouri Compromise of 1820. While in Wisconsin, Emerson allowed Scott to marry and later left Scott and his wife in Wisconsin when he was reassigned to Louisiana. While in Louisiana, Emerson married Eliza Irene Sandford. He then sent for Scott and his wife, who traveled to Louisiana to serve Emerson and his wife. After Emerson’s death in 1843, his widow inherited his estate, including Scott. Scott attempted to purchase his freedom from Emerson’s widow, but she refused. In 1846, Scott sued Emerson’s widow for the freedom of himself and his family, but the Missouri Supreme Court upheld their slavery. Scott brought suit again in 1853 in federal district court against John Sandford (defendant), executor of Emerson’s estate. The federal court relied on Missouri law to find that Scott was still a slave, and the Circuit Court of Appeals affirmed. Scott petitioned for certiorari in the United States Supreme Court.

Reasoning (Taney): In deciding that Scott and other persons of African descent, whether currently slaves or free, are not citizens of the United States and thus not entitled to Constitutional protections, an analysis is made starting with the characterization of persons in this category by the Framers of the Constitution. The inquiry is necessarily limited to a class of persons that include only those whose ancestors are of the African race, imported into the United States, and sold as slaves. At the time the Framers drafted the Constitution, the prevailing view in the United States was that people of African descent imported into the country as slaves were an inferior race and therefore not entitled to basic Constitutional protections, rights, and freedoms. Regardless of its own disagreement with this classification, the judiciary’s role is not to judge the wisdom of the policy, but rather to interpret the application of the Constitution as it was written. It does not necessarily follow that a person is entitled to all the protections afforded to a citizen of the United States because someone is a citizen of a particular state. Although the Framers’ language in the Declaration of Independence stated that “all men are created equal,” the prevailing negative view of African Americans at the time of the Declaration’s drafting meant that the Framers could not have intended those words to apply to African Americans. People of African descent were brought to the United States as property and were always considered as such in subsequent years. The factual record suggests that Dred Scott is still considered property and a citizen of Missouri, where he resides.

Applies the privileges and immunities of citizenship (Bill of Rights + other fundamental rights like habeas corpus and guilty conviction beyond a reasonable doubt) to the states.

Key: the Supreme Court doesn't apply these fundamental rights (like Free Speech, Voting RIghts, Equality, etc.) in earnest against the states until the 20th Century.

Section 1 text:
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Facts: Court allows Louisiana to grant a monopoly to a slaughterhouse company to supposedly to avoid water contamination and protect public health and safety.

Key: The holding WRONGLY reads out the term privileges and immunities clause of the Fourteenth Amendment as only protecting rights guaranteed by the United States and not individual states, and largely geared towards the protection of emancipated slaves and African Americans.

Prof. Amar: "Virtually no serious modern scholar—left, right, and center—thinks that Slaughter-House is a plausible reading of the Fourteenth Amendment."

Impact of this case: Future supreme courts, to avoid overruling itself, will call fundamental rights “due process” or “substantive due process” instead of using the term "privileges and immunities." Although "privileges and immunities" is the relevant part of the 14th Amendment text related to the protection of fundamental rights (Bill of Rights + rights like habeas corpus, conviction by guilt beyond a reasonable doubt, etc.).