8 Wheat. (21 U.S.) 1 (1823), argued 16 Feb. 1821, decided 5 Mar. 1821 by vote of 6 to 0; Story for the Court, Washington absent. Motion for rehearing 12 Mar. 1821, reargued 8–11 Mar. 1822; decided 27 Feb. 1823 by vote of 4 to 0; Washington for the Court, Johnson concurring, Livingston, Todd, and Marshall absent. The decisions in Green v. Biddle were the Court's most important effort after Fletcher v. Peck (1810) to expand the Contracts Clause to encompass public as well as private agreements—in this case, the Virginia-Kentucky compact of 1792.
The compact provided that the validity of Kentucky land titles was to be “determined by the laws now existing,” that is, Virginia's. Kentucky, however, enacted a system of Occupying Claimant Laws, providing that actual settlers, if ejected by nonresident titleholders, could secure compensation for improvements and crops. Litigation testing the validity of Kentucky's 1792 and 1812 occupant laws went up to the Supreme Court on a certificate of division from the federal circuit court in a case brought against an occupant by John Green of Virginia. Justice Joseph Story delivered an opinion in 1821 holding the Occupying Claimant Laws unconstitutional as a violation of the Contracts Clause of Article I, section 10 and inconsistent with the Compacts Clause in the same section.
Story's opinion encountered a storm of political opposition led by Kentucky's two powerful senators, Henry Clay and Richard Johnson. In the face of this resistance, the Story opinion was “withdrawn,” to be replaced by an 1823 opinion for three justices by Bushrod Washington, joined by William Johnson's concurring opinion. (Chief Justice John Marshall was absent, Brockholst Livingston mortally ill, and Thomas Todd “indisposed.”) Washington's opinion held the Virginia-Kentucky compact to be a contract and as such inviolate under the Contracts Clause, but impaired by the Kentucky statutes. Kentucky again resisted vehemently and continued to enforce its land claims statutes, while the furor in Congress over the authority of the Supreme Court continued unabated.
Sandra F. VanBurkleo