Barron v. Baltimore, 32 U.S. 243 (1833)

Barron v. Baltimore was an appeal to the Supreme Court from the Court of Appeals of Maryland, upon a writ of error through Section 25 of the Judiciary Act of 1789, on the grounds that a state action had violated the U.S. Constitution. The suit was begun by John Barron to recover damages from the city of Baltimore, which in paving streets and diverting streams had allegedly made his wharf useless from a buildup of sand that made the water too shallow for ships. Barron claimed that Baltimore’s actions violated the takings clause in the Fifth Amendment, which stated ‘‘nor shall private property be taken for public use without just compensation.’’ This raised the question of whether the Fifth Amendment and in general the Bill of Rights restricted the states as well as the federal government.

The Marshall Court answered in the negative, denying that it had jurisdiction and stating that the Bill of Rights did not apply to the states. In the opinion of the Court, Chief Justice John Marshall reasoned first, that in America the sovereign people through state constitutions empowered and restricted state governments and through the U.S. Constitution empowered and restricted the federal government. Unless expressly stated otherwise, the Constitution, including amendments to it, referred only to the federal government. Second, through textual analysis of the Constitution, Marshall compared the Bill of Rights to Sections 9 and 10 in Article I. Section 9, which he called a brief bill of rights with restrictions on the federal government, used general language. Section 10, which earlier in Fletcher v. Peck he called a brief bill of rights with restrictions on the states, clearly and expressly referred to only the states with each clause beginning with ‘‘No State shall.’’ The first ten amendments are mostly in general language similar to Section 9. Third, he observed, ‘‘it is universally understood, it is a part of the history of the day’’ that during the ratification debate the Anti-Federalists demanded a bill of rights, almost every ratifying convention recommended amendments, and Congress proposed and the states ratified a bill of rights with safeguards against the new federal government, not the states.

Marshall’s arguments are reinforced by the speeches in the First Congress by James Madison, the main author of the Bill of Rights, who proposed that the amendments be placed within the Constitution, mostly in the Article I, Section 9 restrictions on the federal government. Also, an amendment he proposed that would expressly apply to the states, which he wanted in the Section 10 restrictions on the states, failed to pass.

While there had been some discussion prior to the case, Barron settled in the courts that the Bill of Rights did not apply to the states, and, despite criticism by the Abolitionists, the doctrine was maintained by the Court through to the Fourteenth Amendment, which used the language in Section 10 clearly expressing, ‘‘No state shall . . . .’’ Through this amendment, by the Warren Court era, through a process of incorporation, the Court has applied most of the Bill of Rights to the states.

F. THORNTON MILLER

References and Further Reading

• Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998
• Ely, James W., Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. 2nd ed. New York: Oxford University Press, 1998
• Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801–1835. Columbia: University of South Carolina Press, 1997
• White, G. Edward. The Marshall Court and Cultural Change, 1815–1835. New York: Oxford University Press, 1991

Cases and Statutes Cited

• Fletcher v. Peck, 6 Cranch 87 (1810) 

See also Abolitionists; Application of First Amendment to States; Bill of Rights: Structure; Fourteenth Amendment; Incorporation Doctrine; Madison, James; Marshall, John; Marshall Court; Takings Clause (V); WarrenCourt