"Privilege against Public Right": A Reappraisal of the Charles River Bridge Case

Authors

Robert E. Mensel

Abstract

Was The Charles River Bridge Case a watershed in American legal history and political economy, as legal historians have long maintained? Did the decision of the United States Supreme Court really present a sharp choice between "privilege and creative destruction," and did that choice reflect a dilemma that was really forced upon Jacksonian society by economic conditions? This article suggests that the prevailing understanding of the case is based upon misconceptions of the significance of the Supreme Court's limited jurisdiction in the case, misconceptions concerning the economics of transportation enterprises in Jacksonian America, and misconceptions concerning the reasoning underlying the decision. It suggests that portions of the opinion, which have been understood as the "real" reason for the decision, were in fact mere rhetorical posturing not intended to be taken seriously. The true basis for the decision lay in common law notions of community rights and the avoidance of upward redistributions of wealth, notions which formed the basis of a Jacksonian constitutional jurisprudence that died aborning.

First Page

1

Recommended Citation

Robert E. Mensel, "Privilege against Public Right": A Reappraisal of the Charles River Bridge Case, 33 Duq. L. Rev. 1 (1994).
Available at: https://dsc.duq.edu/dlr/vol33/iss1/3