The Courts and Property
THE constitutional safeguards which surround private property in the United States are exceptionally strong. Between confiscation and the multitude stand the state and the federal courts. In Cutting v. Goddard, decided in 1901, the Supreme Court held that a return of 10.9 per cent, on the investment is not unreasonably high and that a return of 5.3 per cent, is unreasonably low. In decreeing the dissolution of the Standard Oil and the American Tobacco Companies, the same tribunal left the defendant companies in possession of everything which they had succeeded in amassing by unlawful methods. Nowhere in either of these decisions is there any hint that restitution ought to be made. On the contrary, every precaution necessary to conserve the property which monopoly control had garnered together was scrupulously observed. In the course of the Standard Oil decision, the ChiefJustice remarked "that one of the fundamental purposes of the statute (the Anti-trust Act) is to protect, not to destroy, rights of property." No penalty was inflicted other than dissolution and the prohibition of acts violative of the statute. So far as constitutional guaranties are concerned, the most strenuous advocate of property rights could scarcely ask for anything more.
Nevertheless, the extent to which the Supreme Court conserves the rights of property is easily exaggerated. The Dred Scott decision did not prevent the overthrow of slavery, and moreover without compensation. On the contrary, it hastened its downfall and proved to be the one thing from which the slave power might well have prayed to be delivered. Much comfort was extracted by an influential portion of the property-owning class from the income tax decision in 1895, but the cost of what was gained from that decision has seldom figured properly in the account. Probably no decision of the Supreme Court since the Civil War has excited so much dissatisfaction or fallen so flat. In the opinion of many the court as now constituted would find a way of upholding a similar measure even though the constitution had not been amended. To save the face of the court was the strongest argument
- William Z. Ripley, "Railway Problems," p. 578.
- United States Supreme Court Reports, Vol. 55, Law. Ed., October, 1910, p. 652.