The Supreme Court, in upholding the U.S. Constitution’s strong protections for the rights of private property and ownership of land, contributed to a stable economic environment that has allowed for the flourishing of American business.
The early rise to prominence of the U.S. Supreme Court was in part prompted by its concern for creating a stable business environment as expressed in its early property and land law decisions. After a relatively quiet first decade of the Supreme Court, John
Chief Justice Marshall believed in a strong federal government, able to maintain order and security and to take an active hand in developing the American continent. He believed the rule of law to be a necessary precondition for exploiting America’s vast natural resources, expanding the country’s manufacturing sector, and developing American business. Central to Marshall’s conception of the rule of law was the security and protection of private property and the ownership of land.
Marshall and his Supreme Court, in contrast, espoused a philosophy of property law that saw land as unrestricted, freely alienable, freely divisible, and freely mortgageable. Without legal restrictions, land could be treated as another commodity to be bargained for, exchanged, speculated on, and collaterized. Above all, the justices saw land as a flexible instrument in the cultivation of the great American expanse and the prospering of the American economy. Rather than being preserved immobile through centuries, American land was divided by all the sons of each generation, contributing to an egalitarian sense of land ownership.
Marshall’s colleague on the bench, the scholarly Joseph
Tuscarora tribe members show their opposition to having a power plant located on their reservation in Niagara County, New York. Although their case went to the Supreme Court, the tribe lost.
Crucial to the opening of the great American land frontiers for economic development and business growth was the question of
Johnson v. M’Intosh was a dispute over a vast tract of land in Illinois. The plaintiff had purchased the land from the Piankashaw during the 1770’s. The defendant had purchased the same land from the U.S. government in 1818. In holding for the defendant, despite the fact that he made his purchase subsequent to the plaintiff’s, Marshall declared that the sale from the Piankashaw had no legal force. Ultimate title to lands occupied by Indians was vested in the U.S. government, which alone had dominion over them. Thus the Court put into jurisprudence the reality of land competition between settlers and Native Americans.
As a result of the Johnson decision, the vast frontiers stretching before America’s settlers were laid open to be cultivated, farmed, and developed as federal law allowed; Native Americans were unable to assert any legal claim. This was a principle of land law that the Court would continue to uphold over the next two centuries in such cases as Cherokee Nation v. Georgia (1831), Worcester v. Georgia (1832), Lone Wolf v. Hitchcock (1903), Tee-Hit-Ton Indians v. United States (1955), and United States v. Sioux Nation of Indians (1980).
By the completion of Marshall’s tenure as chief justice in 1835, the Supreme Court had already put a decisive stamp on its jurisprudence of land law and its relation to American business. The Supreme Court gave the greatest respect to rights in private property and land and thus helped create a stable financial regime that allowed business ventures to flourish.
The remainder of the nineteenth century saw much quieter developments in Supreme Court land jurisprudence. Beginning with Daly’s Lessee v. James (1823), the Court adjudicated numerous cases involving the inheritance of landed estates. In Walker v. Parker (1839), Daniel v. Whartenby (1873), and Hardenbergh v. Ray (1894), the Court interpreted the terms of the inherited estates in a most flexible manner, despite the traditional English emphasis on the rigidity of common law estates. In Jenkins v. Collard (1892), the Court allowed for the conveyance of real estate that had been forfeited by a Confederate soldier, who had since received a general pardon. In Ely v. New Mexico and A. R. Co. (1889) and Sharon v. Tucker (1892), the Supreme Court upheld the doctrine of adverse possession. This doctrine, which allows for an occupier of neglected land eventually to assert legal title to that land, supports a dynamic, business-oriented view of land law. It punishes landowners who leave their lands fallow and unproductive and rewards intruders who make profitable, cultivated use of the land.
At the beginning of the twentieth century, the Supreme Court found itself once more in the thick of vital questions concerning land that carried implications for the development of American business.
The Supreme Court upheld zoning as a legitimate exercise of the state’s power to enact legislation to promote the public welfare. Subsequently, the Court upheld land controls and zoning legislation that were aimed at urban redevelopment (Berman v. Parker, 1954) and at ensuring family and urban amenities (Village of Belle Terre v. Boraas, 1974, and Ward v. Rock Against Racism, 1989). It invalidated zoning ordinances that were found to be arbitrary and unreasonable (Nectow v. City of Cambridge, 1928), violated homeowners’ rights to free speech by prohibiting lawn signs (Linmark Associates Inc. v. Willingboro, 1977, and City Ladue v. Gilleo, 1994), or discriminated against racial or other minorities (Buchanan v. Warley, 1917, and City of Edmonds v. Oxford House, 1995). Probably no other development in land law has done more to shape American residential and commercial patterns–and hence American business–than the law of zoning, a development encouraged by the Supreme Court with its doctrine of extreme deference to the legislative process in this area of law.
Closely related to the question of zoning is that of the takings clause of the Fifth Amendment, prohibiting government from taking private property for “public use,” except in return for “just compensation” (a process known as
In cases such as Pennsylvania Coal Co. v. Mahon (1922), Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Palazzolo v. Rhode Island (2001), the Court has been careful to protect the rights of property owners to just compensation when government legislation reduced the ability of landowners to derive economic or other value from their property. Nevertheless, in the much-controverted case of
With the rise of the Civil Rights movement, the Supreme Court became active in trying to eliminate discrimination in American
Ely, James W., Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. 3d ed. New York: Oxford University Press, 2008. Scholarly history of property rights under the Constitution and their interpretation by the Supreme Court. Friedman, Lawrence. A History of American Law. 3d ed. New York: Touchstone, 2005. Emphasizes social aspects of American legal history; incisively written, with penetrating insights. Johnson, Herbert. The Chief Justiceship of John Marshall, 1801-1835. Columbia: University of South Carolina Press, 1997. Leading Marshall scholar surveys his life and tenure on the Court. Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2006. History of Supreme Court decisions on race relations, many of which related to land law. Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1995. Concise, balanced history of the Supreme Court from its creation, with an emphasis on its four most historic decisions. Urofsky, Melvin I., and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2d ed. 2 vols. New York: Oxford University Press, 2004. Comprehensive textbook on the history of the Constitution and leading Supreme Court cases.
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