The right [of government] to regulate contracts, to prescribe the rules by which they may be evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and has been universally exercised.—Ogden vs. Saunders, 12 Wheaton 347.
He here asserts that "the supreme power in a State"—that is, the legislature of a State—has "the right" to "deem it mischievous" to allow men to exercise their natural right to make their own contracts! Contracts that have a natural obligation! And that, if a State legislature thinks it "mischievous" to allow men to make contracts that are naturally obligatory, "its right to prohibit them is unquestionable."
Is not this equivalent to saying that governments have all power, and the people no rights?
On the same principle, and under the same definition of law, the lawmakers of a State may, of course, hold it "mischievous" to allow men to exercise any of their other natural rights, as well as their right to make their own contracts; and may therefore prohibit the exercise of any, or all, of them.
And this is equivalent to saying that governments have all power, and the people no rights.
If a government can forbid the free exercise of a single one of man's natural rights, it may, for the same reason, forbid the exercise of any and all of them; and thus establish, practically and absolutely, Marshall's principle, that the government has all power, and the people no rights.
In the same case, of Ogden vs. Saunders, Marshall's principle was agreed to by all the other justices, and all the lawyers!
Thus Thompson, one of the justices, said:
Would it not be within the legitimate powers of a State legislature to declare prospectively that no one should be made responsible, upon contracts entered into before arriving at the age of twenty-five years? This, I presume, cannot be doubted.—p. 300.
On the same principle, he might say that a State legislature may declare that no person, under fifty, or seventy, or a hundred, years of age, shall exercise his natural right of making any contract that is naturally obligatory.