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Barron v. the Mayor and City Council of Baltimore - Bruce Frohnen, The American Republic: Primary Sources 
The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002).
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Barron v. the Mayor and City Council of Baltimore
The city of Baltimore undertook a number of road and harbor improvements to accommodate its expanding population and commercial activity. Between the years 1815 and 1821 these improvements, including diversion of area waterways, made the water shallower around a wharf owned by the company of Craig & Barron. The effect was to make the water near Craig & Barron’s wharf too shallow for larger and more profitable cargo ships. John Barron, the surviving member of the corporation, sued the city for financial losses suffered by the business as a result of the decrease in water levels. The case eventually found its way to the U.S. Supreme Court. One of the points at issue here was whether the city had violated Barron’s right under the Fifth Amendment to the United States Constitution not to have his property taken for public use without just compensation. In siding with the city (without even hearing their arguments), Chief Justice Marshall established the rule that the protections of the Bill of Rights would be applied against the national government, but not against the states that had joined in forming that government.
Barron v. the Mayor and City Council of Baltimore
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 favour 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 farther than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. In support of this argument he relies on the inhibitions contained in the tenth section of the first article.
We think that section affords a strong if not a conclusive argument in support of the opinion already indicated by the court.
The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress: others are expressed in general terms. The third clause, for example, declares that “no bill of attainder or ex post facto law shall be passed.” No language can be more general; yet the demonstration is complete that it applies solely to the government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain state legislation, contains in terms the very prohibition. It declares that “no state shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation.
The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures. These restrictions are brought together in the same section, and are by express words applied to the states. “No state shall enter into any treaty,” &c. Perceiving that in a constitution framed by the people of the United States for the government of all, no limitation of the action of government on the people would apply to the state government, unless expressed in terms; the restrictions contained in the tenth section are in direct words so applied to the states.
It is worthy of remark, too, that these inhibitions generally restrain state legislation on subjects entrusted to the general government, or in which the people of all the states feel an interest.
A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution. To grant letters of marque and reprisal, would lead directly to war; the power of declaring which is expressly given to congress. To coin money is also the exercise of a power conferred on congress. It would be tedious to recapitulate the several limitations on the powers of the states which are contained in this section. They will be found, generally, to restrain state legislation on subjects entrusted to the government of the union, in which the citizens of all the states are interested. In these alone were the whole people concerned. The question of their application to states is not left to construction. It is averred in positive words.
If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the states; if in every inhibition intended to act on state power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed.
We search in vain for that reason.
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 would have been applied by themselves. A convention would have been assembled by the discontented state, and the required improvements would 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 invaluable 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. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed.
State versus Federal Authority
One of the central issues at the Constitutional Convention and at the conventions called to consider ratifying that Constitution was this: How could Americans form a government to address their common problems without losing the sovereignty of their individual states? Arguments over representation, the powers of the Supreme Court, congressional taxing power, and even the Bill of Rights in large measure grew out of Americans’ concern to balance the needs of the nation with the rights of the states. Ratification and passage of the Constitution’s first ten amendments did not end this debate. Indeed, it remained at the center of American public life up through the Civil War and, in some ways and in certain quarters, long after.
Questions concerning states’ rights and federal authority erupted at various times before the Civil War. This occurred most explosively in regard to slavery, but two other issues raised tensions to dangerous levels. First, the Alien and Sedition Acts increased presidential powers concerning the status of foreign citizens suspected of foment-ing unrest and limited certain forms of criticism of the national government. Second, the War of 1812 was politically unpopular and raised the issue of the central government’s right to draft citizens of the states into military service. Both called the very existence of the states’ union into question.
Beneath the immediate issues was a constitutional question: Was the United States the creature of its states—a compact among sovereignties—or was it a union of citizens, joined together in a national government, with the states subordinate members of that greater whole?