CRIMINAL PROCEDURE: UNDERGRADUATE EDITION/ KEY CASES FOR INCORPORATION (NATIONALIZATION) OF THE BILL OF RIGHTS/ BARRON V. CITY OF BALTIMORE (1833)

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KEY CASES FOR INCORPORATION (NATIONALIZATION) OF THE BILL OF RIGHTS

Remember: create a one-page case brief for each judicial opinion that you are assigned to read in the course, including case briefs for judicial opinions that have been edited so that they are very short.

The case excerpts that follow briefly trace the history of the Bill of Rights and how individual rights originally written to protect people against the federal government eventually came to provide protections against the actions of state and local governments, too.

JOHN BARRON, survivor of JOHN CRAIG, for the use of LUKE TIERNAN, Executor of JOHN CRAIG,

v.

The MAYOR and CITY COUNCIL OF BALTIMORE.

January Term, 1833

[Syllabus: clerk’s summary of the case] ….Craig & Barron, of whom the plaintiff was survivor, were owners of an extensive and highly productive wharf, in the eastern section of Baltimore, enjoying, at the period of their purchase of it, the deepest water in the harbor. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the health of Baltimore, diverted from their accustomed and natural course, certain streams of water which flow from the range of hills bordering the city, and diverted them, partly by adopting new grades of streets, and partly by the necessary results of paving, and partly by mounds, embankments and other artificial means, purposely adapted to bend the course of the water to the wharf in question. These streams becoming very full and violent in rains, carried down with them from the hills and the soil over which they ran, large masses of sand and earth, which they deposited along, and widely in front of the wharf of the plaintiff. The alleged consequence was, that the water was rendered so shallow that it ceased to be useful for vessels of an important burden, lost its income, and became of little or no value as a wharf. ***

***On all points, the decision of Baltimore county court was against the defendants, and a verdict for $4500 was rendered for the plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court. [32 U.S. 243, 245]  ***

[The plaintiff argues…]2. …3. That this exercise of authority [by Baltimore in its construction of roads] was repugnant to the [C]onstitution of the United States, contravening the fifth article of the amendments [i.e., 5th Amendment] to the constitution, which declares that ‘private property shall not be taken for public use, without just compensation;’.***

Chief Justice John MARSHALL, delivered the opinion of the court.

***The plaintiff in error contends, that it comes within that clause in the fifth amendment to the constitution, which inhibits the taking of private property for public use, without just compensation. He insists, that this amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

***

Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves. A convention could have been assembled by the discontented state, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of congress, and the assent of three-fourths of their sister states, could never have occurred to any human being, as a mode of doing that which might be effected by the state itself. Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. ***

NOTES: The decision in Barron v. Baltimore provided a baseline understanding of the original purpose of the Bill of Rights: to protect people against actions by the national government alone, not actions by state and local governments. The ratification of the Fourteenth Amendment after the Civil War added new language that lawyers used to try to persuade the Supreme Court that provisions of the Bill of Rights should also provide protection against state and local governmental actions. The Fourteenth Amendment was very clearly intended to provide protection against states (and localities, which are subdivisions of states) by saying: “No State shall….” But the rights listed in the Amendment that are protected against state action are not as specifid as many of the rights listed in the Bill of Rights. Instead, they are vaguely stated rights that require interpretation by judges: states must respect the “privileges and immunities of citizenship”; “due process of law” is required before states deprive anyone of “life, liberty, or property”; and states must provide “equal protection of the laws.”

In a series of individual cases filed throughout the 150- year period following the ratification of the Fourteenth Amendment, lawyers sought to convince the Supreme Court that individual components within the Bill of Rights should also be protected from state infringement by considering these individual rights as part of the “due process of law” to which people are entitled. Not all of these claims were initially successful, but over time most provisions of the Bill of Right were “incorporated” into the Fourteenth Amendment for application against state action. Thus, the process of incorporating individual rights from the Bill of Rights into the coverage of the Fourteenth Amendment’s Due Process Clause served to “nationalize” many constitutional rights so that they apply everywhere within the country as protections against actions by all levels of government.

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CRIMINAL PROCEDURE: UNDERGRADUATE EDITION/ KEY CASES FOR INCORPORATION (NATIONALIZATION) OF THE BILL OF RIGHTS/ BARRON V. CITY OF BALTIMORE (1833) based on Criminal Procedure: Undergraduate Edition by Christopher E. Smith is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.