What is the fundamental role or purpose of an established government? How did the founders view this role, and what hints did they give us to protect these rights? The rights outlined in The Bill of Rights were not created by and did not originate from the Founding Fathers, but the language of The Declaration of Independence is such that we can be left without any doubt of where the Founders believed rights originated. We read “they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty and the pursuit of happiness.” If you continue reading The Declaration of Independence, we come to the fundamental purpose of governments as the Founding Fathers viewed it, “That to secure these rights, Governments are instituted among Men,…” A very straightforward response to any questions in regard to the origin of rights, and the purpose of government.

After this brief examination into the origin and protection of rights, we can look into understanding the wording and history of the Fifth Amendment. The first part of the Fifth Amendment is very clear and concise, and there is very little misunderstanding in regards to the meaning and intent behind those first clauses. Yet as we reach the end of the amendment we get to this very peculiar idea of due process. Essentially, the government cannot deprive someone of life, liberty or property “without due process of law.” Later in the Fourteenth Amendment this concept of due process was taken and applied to the states. Eventually from the due process clause sprung “substantive due process”, which means that some rights are so fundamental that the government cannot deprive you of them. When arguing this point in Perry v. New Hampshire Justice Clarence Thomas said, “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”. What Justice Thomas is saying is that the Due Process Clause is a safe place where existing rights are protected against unfairness.

    This brings us to Lochner v. New York  (1905), and the Freedom of Contract. The background of Lochner is as follows: The state of New York put into effect several regulations upon bakeries, this was because of some pressure the government was receiving from long established bakeries who wanted to reduce the competition from immigrants who were coming and setting up bakeries near them. The regulations set included limiting work hours of employees to either a maximum of 10 hours a day or 60 hours a week. Lochner was a bakery owner who had an employee who wished to work more than the regulated time, which Lochner allowed the employee to do. The Supreme Court of the United States ruled in favor of Lochner, and established this idea of Freedom to Contract. Which said that an employee and employer have the right to make a contract or agreement on how much the employee will work and their pay. It is encroachment from the government and a violation of their property rights to regulate the content of such a contract. This was the beginning of what we call the Lochner era or era of Laissez-Faire jurisprudence.

    The Lochner/Laissez-Faire jurisprudence ended with Supreme Court Case West Coast Hotel Co. v. Parrish (1937), this is where the court rejected the Freedom to Contract, arguing that the Constitution spoke of liberty not freedom to contract. The court also said that the Constitution does not recognize liberty and unregulatable, or uncontrollable, but that it can be regulated and controlled by “due process of law.”

    In US v. Carolene Products Co. (1938), the court went a step further in saying that property rights, when viewed as economic rights, are not entitled to equal protection as other rights. This concept of some rights being more fundamental than others got a lot of push back from more conservative voices on the court including Justice Clarence Thomas. When speaking of US v. Carolene, Paul Moreno (Professor of Constitutional History at Hillsdale College) said, ”The Due Process Clause of the 14th amendment has been revised to support a liberal jurisprudence that protects non economic rights and the rights of minority groups especially since the 1960’s.”

    Later, we see evidence in the Supreme Court Case Planned Parenthood v. Casey, which left behind the “freedom to contract” idea, on the grounds that the Constitution says nothing of “freedom to contract”, for a more broad view of “liberty”, which the Constitution does mention. This case offered three definitions of liberty, the most broad being “The right to defend one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This continues the debate of what can be defined as “liberty” and the importance of property rights in a free government, and how far those rights should be allowed to extend.

    From this very complex history of property rights we can see how the idea of property has evolved from its starting place as a fundamental right toward a secondary right subject to regulation and control of both the state and federal government. In James Madison’s writing titled “On Property” (1792), he said “A man has a property in his opinions and in the free communication of them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the use of his faculties, and the free choices of objects on which to employ them. In word, as a man is said to have a right to his property he may equally be said to have a property to his rights.” It sounds to me that what Madison is saying is that “property” is ultimately everything we can call our own, anything given to us by our Creator, or that we work to achieve by use of our faculties.

    “Government has no other end, but the preservation of property”. -John Locke. The Founding Fathers viewed property as a fundamental right, one in which governments are created to protect. With Madison’s definition of “property” in mind it’s hard not to see that the entire Bill of Rights strives to protect this fundamental and natural right to property, and that to say one of these rights is more fundamental or more important than another, would be the same as saying none of them are. 


– “Substantive Due Process”. LII / Legal Information Institute, n.d., https://www.law.cornell.edu/wex/substantive_due_process. Accessed 24 May 2021.

-n.d., https://www.supremecourt.gov/opinions/11pdf/10-8974.pdf. Accessed 24 May 2021.

-“Websters Dictionary 1828 – American Dictionary of the English Language”. Websters Dictionary 1828, n.d., http://webstersdictionary1828.com/. Accessed 24 May 2021.

-n.d., https://assets-us-01.kc-usercontent.com/c7bb3f89-eb78-007e-971a-d5864cf7a236/aa95741f-8c42-45ec-9756-a1b6d2cc8df1/ch27.pdf. Accessed 24 May 2021.

-n.d., https://www.oyez.org/cases/1900-1940/198us45. Accessed 24 May 2021.   

-“Hillsdale College Online Courses”. n.d.,
https://online.hillsdale.edu/courses/the-us-supreme-court. Accessed 24 May 2021.