Guest Essayist: Tony Williams

In the early 1830s, the city of Baltimore was developing as a bustling urban center and port.  The city diverted the streams around John Barron’s successful wharf and lowered the water level, which negatively impacted his business.  He sued the city to recover his financial losses.

Barron claimed that the city government had taken his property without just compensation. Property rights were an essential natural right and constitutional liberty protected by the Fifth Amendment.  The amendment protects individuals against having their property taken without their consent.

“No persons shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The case however raised even more significant issues than whether Barron had his property unjustly taken.  Chief Justice John Marshall saw an opportunity in this relatively minor local case to examine the character of the Bill of Rights and the parameters of the principle of federalism in the relationship of the national government and the states in the early republic.

Marshall was well-suited to explore the origin of the Bill of Rights and federalism since he had been one of James Madison’s key allies among the Federalists arguing for ratification of the Constitution at the Virginia ratifying convention.  Indeed, Madison had been integral to the creation of the Bill of Rights, even though he had a curious relationship with it. Madison had predicated his constitution-making in the 1780s upon a belief that most of the violations of rights were occurring in the states.

Madison had prepared for the Constitutional Convention by examining the defects of the Articles of Confederation in his “Vices of the Political System.”  In the document, Madison thought that the tyranny of the majority in the states resulted in unjust laws that violated individual liberties.  For example, he witnessed the persecution suffered by religious minorities in Virginia, which guided his fight for the Virginia Statute for Religious Freedom.  In “Vices,” he wrote:

If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.

At the Constitutional Convention, Madison fought vigorously for a national veto over the laws of the states to prevent violations of rights, but he lost that battle.  When the Constitutional Convention was wrapping up its work in the summer of 1787, George Mason proposed a bill of rights.  Madison and the other delegates were generally opposed.  As he told Thomas Jefferson, “the rights in question are reserved by the manner in which the federal powers are granted.”  In other words, the federal government was limited to its enumerated constitutional powers and not authorized to violate individual liberties.  Madison fought the inclusion of “prior amendments,” or a bill of rights, as a condition for ratification throughout the entire debate over ratifying the Constitution.

However, with great irony, Madison became the leading voice for a bill of rights in the First Congress.  In his June 8, 1789 speech to Congress proposing a bill of rights, Madison gave several reasons for doing so, but asserted, “I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures…I think there is more danger of those powers being abused by the state governments than by the government of the United States.”

One of Madison’s great objects in constitution-making had been to guard against encroachments of liberties by state governments.  But, Madison lost the national veto at the Constitutional Convention, and he lost the battle to apply the Bill of Rights to the states.  The Bill of Rights applied only to the national government.

In Barron v. Baltimore (1833), John Marshall confirmed that the Bill of Rights did not apply to the states.  The opinion of the unanimous Court ruled against Barron and supported the principle of federalism.  For example, several New England states had constitutional establishments of religion some forty years after the Bill of Rights was ratified.  State governments had their own constitutions and bills of rights.

The application of the Bill of Rights to the states only occurred with the gradual “incorporation” of the Bill of Rights by the Due Process Clause of the Fourteenth Amendment which read: “Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Ratified in 1868, the Fourteenth Amendment, although it was aimed at protecting the rights of African Americans as a “Civil War Amendment,” assumed much larger implications in the Court. Beginning with two decisions prior to the twentieth century, but accelerating rapidly from the 1920s through the 1960s, the Supreme Court expanded the reach of the Bill of Rights. The Court ruled, one right at a time, that almost all provisions of the Bill of Rights are “fundamental and essential in the concept of ordered liberty,” and thus apply against state and local laws just as they limit the federal government. Madison’s view that the federal government should prevent encroachments of liberties by state governments, won the day through court decisions. However, this development was too late to help John Barron. The incorporation doctrine became a highly contentious principle of jurisprudence.  On one hand, supporters point out the liberties that were protected as a result. On the other hand, opponents point out the significant contribution made to the erosion of the principle of federalism in the twentieth century.

Barron v. Baltimore (1833) Supreme Court decision:

Tony Williams is a Constituting America Fellow and the author of five books including Washington & Hamilton: The Alliance that Forged America.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for the essay.

    The author correctly states that Madison had a curious relationship to the BoRs. As noted he opposed it at the Federal convention and during rebates at the Virginia convention for ratification. he argued then that powers not enumerated as Federal in the Constitution were manifestly prohibited from being exercised by the federal government. P. Henry and others argued that if not enumerated or prohibited then it was logical that the Federal Gov’t would seek to exercise them. Madison was also very concerned that following a rigorous 4-5 months of drafting of the Constitution ,there simply was not enough energy and compromise left to draft a BoRs.

    To Madison’s’ credit he did hear the concerns of Henry other in Virginia and other prominent statesmen. When he was voted to serve in the 1st House of Representatives he labored tirelessly to set adopting a BoRs as 1st priority, even before budgets, and every other concern and against the objections of long time allies. He convinced hsi colleagues that the people had ratified the Constitution with the expectation that the Legislature would use the amendment clauses to adopt a BoR within the 1st term. Not doing so would put the Constitutions permanency in dire straits.

    Madison won out and we have a BoRs. Thankfully so because Henry was right. As we have seen, even with the BoRs the Federal gov’t in all three branches have begun to steal away our rights under a confluence of irrational thought. W/o the BoR were would be?



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