Vested Rights

• Author: Harry N. Scheiber
• Pages: 2782-2784

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"Vested rights" are claims enforceable under law. Early in the history of the Republic, an assertive concept of vested rights became the core of a highly refined legal and constitutional doctrine that was invoked as a shield for private property against regulation by government. In EDWARD S. CORWIN'S phrase, this became "the basic doctrine of American constitutional law."

An early expression of the doctrine was Justice WILLIAM PATERSON'S opinion in VAN HORNE ' S LESSEE V. DORRANCE (1795), stating that preservation of private property is "a primary object of the SOCIAL COMPACT, " so that any law taking one person's freehold and vesting it in another without compensation must be seen as "inconsistent with the principles of reason, justice and moral rectitude? [and] contrary to the principle of social alliance in every free government." In expounding this doctrine, judges and treatise writers cited general principles of justice from

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natural law, civil law, and COMMON LAW. In pre-1860 contract and property law, the doctrine served in tandem with the CONTRACT CLAUSE and was regularly invoked by those opposing the expansion of state interventions under the taxation, EMINENT DOMAIN, and POLICE POWERS.

There is a difference between "vested interests" and "vested rights." The former are claims and expectations based on private contractual relationships and upon a property owner's understanding of the privileges, immunities, and responsibilities associated by law with the property in question. Interests become "rights" when courts agree to enforce such contractual relationships and understandings concerning property. This difference was recognized by Justice ROBERT H. JACKSON, in his opinion in United States v. Willow Run Power Company (1945), declaring: "Not all economic interests are "property rights'; only those economic advantages are "rights' which have the law back of them.?" A claim to a right (or "advantage"), Jackson stated, "is really a question to be answered" in judicial proceedings and decisions; it is not something to be taken a priori, even when ancient maxims and rules can be adduced in favor of the claim.

Justice Jackson's robust LEGAL REALISM was not the view that prevailed in legal and constitutional discourse during the nineteenth century. On occasion, individual judges or courts did defend legislative prerogatives against claims of vested rights in terms that foreshadowed Jackson's formulation. For example, a New York judge in 1835 denounced vested rights as an "indefinite" term that was "resorted to when no better argument exists." Any governmental action, he contended, imposed "burthens and duties" that redefined rights. Much more commonly found, however, were...