directed against the Tories, embracing acts of confiscation,
bills of pains and penalties, even acts of attainder. A second exhibit
of the same kind is furnished by the flood of paper money laws and other
measures of like intent which the widespread debtor class forced through
the great majority of the state assemblies in the years following the
general collapse of values in 1780.

The most important reaction of the creditor interest to this course of
legislation was its energetic part in bringing about the Philadelphia
Convention. Closer, however, to our purpose is the leadership taken by
the new federal judiciary in asserting the availability against
predatory state legislation of extra-constitutional principles sounding
in Natural Law. In 1795 Justice Paterson of the new Supreme Court
admonished a Pennsylvania jury that to construe a certain state statute
in a way to bring it into conflict with plaintiff's property rights
would render it void. "Men," said he, "have a sense of property.... The
preservation of property ... is a primary object of the social
compact".[60] Three years later, Justice Chase proclaimed from the
Supreme Bench itself, with characteristic emphasis, his rejection of the
idea that state legislative power was absolute unless its authority was
"expressly restrained" by the constitution of the State.[61] He too was
thinking primarily of the rights of property.

To dicta such as these constantly accrued others of like tenor from
various high state courts, the total of which had come to comprise prior
to the War between the States an impressive body of coherent doctrine
protective of vested rights but claiming little direct support from
written constitutional texts. This indeed was its weakness. For the
question early obtruded itself, whether judicial review could pretend to
operate on a merely moral basis. Both the notion that the Constitution
was an emanation from the sovereignty of the people, and the idea that
judicial review was but a special aspect of normal judicial function,
forbade the suggestion. It necessarily followed that unless judicial
protection of the property right against legislative power was to be
waived, it must be rested on some clause of the constitutional document;
and, inasmuch as the due process clause and the equivalent law of the
land clause of certain of the early state constitutions were the only
constitutional provisions which specifically mentioned property, they
wer