Readings on the Relation of Government to Property and Industry

By Samuel P. Orth | Go to book overview

government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy.


STATE POLICE POWERS AND FEDERAL PROPERTY GUARANTEES

BY CHARLES C. MARSHALL OF THE NEW YORK BAR

(From the Columbia Law Review, March, 1904)

The Federal Constitution as originally adopted contained only two clauses that could be said to be guarantees of property rights1 as against the exercise by the States of their Police Powers. They were contained in the Commerce Clause, providing that Congress shall have power to regulate commerce with foreign Nations and among the several States, and in the Fugitive Slave Clause. The Commerce Clause, in that it signified freedom of commerce from State control was a guarantee of property rights involved therein, and the Fugitive Slave Clause, in that it secured the return of the fugitive slave was a guarantee to the Slave States of slave property. Both operated to restrain the States in the exercise of their Police Powers touching the property in question.

We do not overlook the provisions forbidding the States to pass laws impairing the obligation of contracts, that full faith and credit should be given by each State to the public acts, records and judicial proceedings in every other State, that the citizens of each State should be entitled to all the provisions and immunities of citizens in the several States, nor such provisions as those delegating to the National Government the power to tax, to establish uniform bankruptcy laws, and to coin money and regulate the value thereof, and to fix the standard of weights and measures. All these may at times affect property rights and possibly override some manifestations of State Police Powers, but their effect is indirect and incidental and they are in no sense limitations on State sovereignty in respect to property rights and are not to be considered here.

The jealousy by the States of the Federal Power which thus showed itself in the Federal Constitution as originally adopted was none the less active in 1789 when the first ten amendments were added, for, as is well known, these were directed against the National Government in their restrictive effect and were not intended to apply to the

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1
It is, of course, Common Law property rights which are referred to. Special property rights, such as patents, copyrights, etc., are excepted from consideration here.

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