As the federal Constitution originally contained no restriction upon the states touching the confiscation of the property of their own citizens, provided contracts were not impaired, it was only in 1868, by the passage of the Fourteenth Amendment, that the Supreme Court of the United States acquired the possibility of becoming the censor of state legislation in such matters.  Nor did the Supreme Court accept this burden very willingly or in haste.  For a number of years it labored to confine its function to defining the limits of the Police Power, guarding itself from the responsibility of passing upon the “reasonableness” with which that power was used.  It was only by somewhat slow degrees, as the value of the threatened property grew to be vast, that the Court was deflected from this conservative course into effective legislation.  The first prayers for relief came from the Southern states, who were still groaning under reconstruction governments; but as the Southern whites were then rather poor, their complaints were neglected.  The first very famous cause of this category is known as the Slaughter House Cases.  In 1869 the Carpet Bag government of Louisiana conceived the plan of confiscating most of the property of the butchers who slaughtered for New Orleans, within a district about as large as the State of Rhode Island.  The Fourteenth Amendment forbade states to deprive any person of life, liberty, or property, without due process of law, and the butchers of New Orleans prayed for protection, alleging that the manner in which their property had been taken was utterly lawless.  But the Supreme Court declined to interfere, explaining that the Fourteenth Amendment had been contrived to protect the emancipated slaves, and not to make the federal judiciary “a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve."[26]

Although, even at that relatively early day, this conservatism met with strong opposition within the Court itself, the pressure of vested wealth did not gather enough momentum to overcome the inertia of the bench for nearly another generation.  It was the concentration of capital in monopoly, and the consequent effort by the public to regulate monopoly prices, which created the stress which changed the legal equilibrium.  The modern American monopoly seems first to have generated that amount of friction, which habitually finds vent in a great litigation, about the year 1870; but only some years later did the states enter upon a determined policy of regulating monopoly prices by law, with the establishment by the Illinois legislature of a tariff for the Chicago elevators.  The elevator companies resisted, on the ground that regulation of prices in private business was equivalent to confiscation, and so in 1876 the Supreme Court was dragged into this fiercest of controversies, thereby becoming subject to a stress to which no judiciary can safely be exposed.