The Marshall Court Affirms Private Property Rights in 1810


Fletcher v Peck used the contract clause in the Constitution to uphold private property rights while contributing to Judicial Nationalism.

The protection of property rights by government has been a fundamental aspect of personal liberties since the founding of the United States. Even before the existence of federal statutes passed after the forming of the Republic, English common law protected property rights through the Doctrine of Vested Rights. In 1810, the Supreme Court, under the leadership of John Marshall, upheld property rights in the case Fletcher v Peck. The court’s rationale was based on the contract clause in Article 1, Section 10, and paragraph 1 of the Constitution.

The Georgia Yazoo Land Fraud Case

Fletcher v Peck dated to a measure passed by the Georgia state legislature in 1795. Georgia legislators, tied to bribes offered by land companies, granted millions of acres of public land for a fraction of the actual value. Subsequent to the Georgia law, these land companies sold plots of land to innocent third parties.

During the next legislative session, however, Georgia law-makers passed another measure rescinding the original land grants. Innocent third parties found themselves without a remedy and the land companies argued that the original Georgia law amounted to a legal contract. The case involved a dispute over a clear title to land conveyed by John Peck to Robert Fletcher.

The Marshall Court Voids the Georgia Law Rescinding the Land Grant

Article 1, Section 10 declares that, “No state shall…pass any…ex post facto Law, or Law impairing the obligation of Contracts…” Chief Justice John Marshall, in his opinion, broadly interpreted this clause in applying it to the Georgia law rescinding the land grant. He did not, however, address the issue of bribery.

By applying the contract clause to states, some Constitutional scholars believe that Marshall was going beyond the scope of what the Founding Fathers intended, namely the contractual obligations between private individuals. In this case, however, Marshall used the Constitutional contract clause to uphold property rights.

Fletcher v Peck and the Spirit of Judicial Nationalism

The Marshall Court is often equated with the notion of Judicial Nationalism. Fletcher v Peck represented the first time the high court claimed jurisdiction over state laws, subjecting such laws to Constitutional scrutiny. Although using some of the same principles that defined the English Doctrine of Vested Rights, the court’s decision in Fletcher did not intend to weaken legislative power at the expense of the federal judiciary.

Marshall, a Federalist, believed strongly that the new central government under the Constitution existed to ensure personal liberties and this included property rights. The Georgia law that was declared unconstitutional represented a legislative abuse of private property.

States’ Rights Advocates Resisted the Decision

Republican-Democrats that followed Thomas Jefferson’s strict constructionist interpretation of the Constitution viewed the Fletcher case as an infringement on states’ rights. For them, the broader picture envisioned a strong central government that arbitrarily interfered in the affairs of individual states.

Similar arguments, usually originating in Southern states, involved federal tariff laws as well as the power and influence of the national bank, tested by the Marshall Court in the 1819 case McCulloch v Maryland. States’ rights would ultimately lead to the nullification crisis and play a part in the decision by Southern states to leave the Union, beginning with South Carolina in December 1860.

Private Property Protected in the US Constitution

The Fifth Amendment of the Constitution states that, “No person shall be…deprived of life, liberty, or property…nor shall private property be taken for public use, without just compensation.” In the post-modern society of the 21st Century, however, such protections face new challenges, notably by communities seeking to revitalize blighted neighborhoods.

In the 2005 case Kelo et al. v City of New London et al., the Supreme Court affirmed a Connecticut Supreme Court decision that allowed for the municipal condemnation of private properties in order to build complexes that, in the long run, served public policy and increased community revenues. Today, property owners must contend with issues of “eminent domain” abuse.

Under English civil law that functioned for hundreds of years before the first English colonies were established in North America, a person’s home was his castle. This was the very essence of private property protection. Building upon that principle, John Marshall used the contract clause to further uphold private property rights, interpreting broadly Constitutional provisions.