Barron v. The Mayor and the City of Baltimore (1833)

Nov 6

Baltimore from Federal Hill / paind. & engd. by W.J. Bennett.

The Doctrine of Incorporation

There are Supreme Court cases that redefine constitutional law. Gitlow v. New York (1925), for example, fundamentally changed the relationship between the Bill of Rights and the states when the Court added a new gospel—the doctrine of incorporation—to the constitutional bible. In Gitlow, the Supreme Court selectively incorporated the Bill of Rights to the states, thus initiating a new era in constitutional law. It did not, however, expressly overturn Barron v. Baltimore (1833), in which the Court ruled that the Bill of Rights does not apply to the states. Nor was the doctrine of incorporation uniformly applied by the Supreme Court in cases after Gitlow. Incorporation occurred on a case-by-cases basis and proceeded in fits and starts.

Subjecting state laws and actions related to the civil liberties outlined in the first eight amendments to the Constitution clearly depreciates the effect of the Tenth Amendment. Such a change was, arguably, radical, but not abrupt. Efforts to incorporate the Bill of Rights to the states first came to the Supreme Court in Barron v. Baltimore decades before the Fourteenth Amendment (1868) was added to the Constitution. In between Barron v. Baltimore and Gitlow v. New York, there were several cases that pushed the Court to embrace the doctrine of incorporation including Permoli v. New Orleans (1845), Hurtado v. California (1884), Mattox v. United States (1895), Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897), Maxwell v. Dow (1900), Twining v. New Jersey (1908), and Prudential Insurance Company v. Cheek (1922).

Advocates of the doctrine of incorporation argue that the Fourteenth Amendment, especially its Due Process Clause, creates an implicit connection between the Bill of Rights and the states. The Fourteenth Amendment does not mention the Bill of Rights. Consequently, the connection between the Bill of Rights and the states, if it exists, originates outside the text of the Constitution. Incorporation is a matter of interpreting the intent of the Fourteenth Amendment and/or the implications of the Fourteenth Amendment Due Process Clause. Understanding the Supreme Court’s evolving interpretation of the Bill of Rights and its relationship to the states begins with Barron v. Baltimore.

Case Background

John Barron owned a wharf in Baltimore Harbor. It was a financially lucrative business for Barron because the waters surrounding the wharf were especially deep and conducive for larger ships to dock. The value of Barron’s wharf, however, declined after the City of Baltimore engaged in a public works project that included paving streets and building a drainage system. Sediment from the streets and surrounding streams dumped into Barron’s wharf making it shallow and unfit for larger ships. When the value of his business significantly decreased, Barron held the city of Baltimore and its mayor responsible.

Barron first filed suit in local courts arguing that the Fifth Amendment of the Constitution prohibited governments at all levels from taking private property without just compensation to its owners. He won the first suit and was awarded $4,500 in damages. When Baltimore appealed to a state appellate court, Barron lost. He, then, appealed to the U.S. Supreme Court.

The Supreme Court’s Ruling

Barron v. Baltimore came to the Supreme Court in the waning years of John Marshall’s tenure as chief justice. In 1833 when the case was decided, he was the sole remaining Federalist-appointed justice on the Court. In his opinion for the Court, Marshall stated that the “question thus presented is, we think, of great importance, but not of much difficulty.” What made the decision easy was that Barron wanted the Court to rule that the Fifth Amendment Takings Clause applied to the states. He wanted the Court to embrace the doctrine of incorporation, in embryonic form, when there was no evidence that the Bill of Rights applied to the states. In fact, Marshall argued that all of the evidence supported the opposite conclusion, the Bill of Rights does not apply to the states.

Why were Marshall and his colleagues so certain that the Bill of Rights did not apply to the states? It was, Marshall argued, clear from the text of the Constitution and the original intent of the Bill of Rights’ framers. The national Constitution was created by the American people as a whole. Its purpose was to create a national government. The citizens of each state, in separate actions, created state constitutions and state governments. The state constitutions limited and checked state governments as the people of each state saw fit. While there are a few provisions in the national Constitution that limit state governments, in each instance the language of the Constitution is explicit. For example, in Article I, Section 10 states are expressly prohibited from exercising specific powers (coining money, entering into treaties, passing bills of attainder or ex post facto laws, granting titles of nobility, impairing the obligation of contracts). Barron’s attorneys argued that such restrictions on state power in Article I, Section 10 meant that other provisions in the national Constitution were also applicable to the states including the Fifth Amendment Takings Clause.

Marshall used Article I, Section 10 to draw the opposite conclusion. He differentiated between limitations on government power that are connected explicitly to the national government and those that are connected explicitly to state governments. While Article I, Section 10 clearly limits the power of state governments—it begins with the words “No State shall”—the Fifth Amendment Takings Clause is part of the Bill of Rights that begins with the words “Congress shall make no law.” Marshall argued that “[h]ad the framers of these amendments [the Bill of Rights] 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…in plain and intelligible language.” Consequently, the limitations on government power in the Constitution “are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.” Marshall applied this understanding of the federal structure of American government to the request made by Barron that the Fifth Amendment applies to the states: “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.”

The distinction between limitations on the national government and those on the state governments is clear not only from the language of the Constitution, but also from the history and intent of the Constitution’s framers. The framers created a federal system of government in which sovereignty and power are divided (in some cases shared). The division is indicated by the separate and distinct actions in which state governments were created, not by the Constitutional Convention in Philadelphia, but in state constitutional conventions. The creation of the national Constitution and the national government did not obliterate the state governments, but it clarified the relationship between the two levels of government.

The framers’ intention is clear from the context in which the Bill of Rights was added to the Constitution. Marshall reminds his readers that in most state ratifying conventions support for the proposed constitution was contingent on the addition of amendments to it that would “guard against the abuse of power” that was granted to the national government. The Bill of Rights was intended to “quiet fears” that the national government was too powerful and the state governments too weak. Taken in historical context, it makes no sense to interpret the Bill of Rights which was created to weaken the national government and strengthen the state governments to have the opposite effect. Marshall concludes that these “amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Consequently, the Fifth Amendment Takings Clause does not apply to the state of Maryland or the City of Baltimore, and the case is dismissed because the Supreme Court lacks jurisdiction.

The Significance of Barron v. Baltimore

John Marshall’s opinion in Barron v. Baltimore and the Court’s unanimous ruling are an important part of American constitutional history and the developments of constitutional law. The Court’s refusal to change the meaning and intent of the Constitution provides a contrast to twentieth century living constitutionalism that gives Supreme Court Justices the discretion to adapt the document to the needs of the day. While Marshall’s legacy and judicial philosophy include creation of a doctrine of implied powers that was used in cases like McCulloch v. Maryland (1819), they do not anticipate living constitutionalism.

What is clear from Barron v. Baltimore is that Marshall was not inclined to expand the power of the Supreme Court beyond the confines of the Constitution’s words and beyond the framers’ intent. In earlier cases, Marshall stretched the meaning of the Constitution’s clauses, but his rulings were tethered nonetheless to what he argued was the purpose of the document and the intent of its framers. If ever there was an opportunity to expand national power at the expense of the states, Barron v. Baltimore was it. Yet, Marshall’s opinion used the framers’ understanding of the relationship between the Constitution and the state governments to frame the Court’s ruling. It may be accurate to classify Marshall as a nationalist, but his opinion in Barron v. Baltimore, like most of his opinions, is incongruent with living constitutionalism.