The Freeman 1972 - The Ludwig von Mises Institute

1972 OTHER BOOKS 383that the Constitution was no merereflection of temporary whims ofthe American general will but w,asa transmutation of constitutionalistprinciples which had graduallybecome embodied in Western civilization,such as Christian ethics,natural law and the common law.The fact that in recent years theCourt has moved away from theseprinciples must not lead us to forgetthat up to Franklin Roosevelt'scourt-packing plan, the Court generallywas considered a conservativeinstitution and a bulwark forlaissez faire.A strong defender of privateproperty, Story, in the famousCharles River Bridge case of 1837,dissented from the majority of theCourt. "In a powerful, exhaustivedissent, Story proudly excoriatedthe Court in the name of propertyand th.e constitutionally protectedrights of the common law. Thislast great undertaking on behalfof property was his best, a magnumopus which epitomized yearsof study spanning more than threedecades of dedicated effort." Declaringthat he stood behind Marshall'sdecision. in Fletcher v. Peck,a decision which gave broad protectionto property rights throughthe doctrine of implied limitations,Story exclaimed: "I stand uponthe old law, upon law establishedmore than three centuries ago, incases contested with as much abiIityand learning as any in the annalsof our jurisprudence, in resistingany such encroachmentsupon the rights and liberties ofthe citizens, secured by publicgrants. I will not consent to shaketheir title deeds by any speculativeniceties or novelties." There was"no surer plan to arrest all publicimprovements, founded on privat~capital and enterprise, than tomake the outlay of that capital uncertainand questionable, both asto security and as to productiveness."Negating Marshall's doctrineof implied limitationsamounted to an infringement uponthe constitutional provision thatno state shall make laws impairingthe obligation of contractslawswhich had prompted the desirefor the Philadelphia Conventionand a more perfect union.Like Marshall, Story favored astrong national government. Sinceour time had been characterizedby a march of power to Washingtonto the detriment of freedom,it could be argued that Story'semphasis on·national power potentiallyhurt the very values hewas favoring, namely, Christianethics, natural law, the commonlaw and the Constitution withtheir far-reaching protection ofhuman rights, including those ofproperty. Such a verdict would beunfair to Story who wanted national-'power (rudimentary as it