Document Type


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Buffalo Law Review



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Supreme Court, Substantive Due Process, Civil War, Individual Rights, Constitutional Rights, Marshall Court, Taney Court, Substantive Rights


During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the exclusion of the diminishing significance of the contract clause. As a consequence, explanations for the evolution of rights against the state generally attempt to account only for the ways in which the late nineteenth century Court expanded upon the constitutional restraints imposed by the Marshall and Taney Courts. A survey of the cases decided under the contract and due process clauses, however, reveals the late nineteenth century Court permitting exercises of state power previously thought to infringe upon constitutional rights, while limiting state power in ways previously thought unacceptable. Even some of the most "conservative" late nineteenth century Justices urged the reversal of the Marshall Court's most important contract clause precedents, not because the fourteenth amendment rendered them unnecessary, but because they had been wrongly decided. An account for the evolution of federal judicial protection for rights against the state should explain this development as well as the rise of substantive due process. This Article's thesis is that the development and eventual evisceration of contract clause doctrine can be explained by reference to the process by which the substantive right came to displace the vested right as the central concept in legal thought about rights against the state. The doctrines developed under the contract clause were formed by a decision to protect only those property and contract rights that were conceived to have vested against subsequent legislative interference. That decision, about the sort of property and contract rights that were sufficiently "legal" to be protected by judicial review of legislative power, reflected a consensus among the antebellum legal elite on the justiciability of the vested right. In contrast to that consensus was a disagreement about the justiciability of substantive rights, represented by such antebellum luminaries as Marshall, Story, and Kent, which grew more acute with the gradual recognition of the incoherence of the boundary doctrines developed to determine when an individual property or contract right had vested. One consequence of this gradual disintegration was the recasting of protected property and contract rights as substantive rights against the state.