Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Commentary by Jon Roland

This is the case that is taken as precedent for the doctrine that the provisions of the Bill of Rights are only restrictions on the powers of the national government, and not on the states. Although this doctrine is considered settled law within the judicial establishment, it is challenged by many constitutional scholars.

There are several arguments for this doctrine. The first is that the provisions of the Bill of Rights are intrinsically only restrictions on the national government, and not on the states, if not in the words then in the debates that took place during the drafting and ratification of them. This line of argument cites the language of the First Amendment that "Congress shall make no law..." and the fact that Madison had proposed more general language that would have applied to the states and that the First Congress, which drafted and proposed the Bill of Rights, based on a first draft provided by Madison, rejected Madison's language in favor of the language which restricts only "Congress". The opponents of this argument point out that the remaining provisions of the Bill of Rights contain no such language, but are written with no qualification on them to restrict the restriction to either Congress or the states, and that by the rules of construction inherited from the English common law tradition, would therefore apply to all levels of government. Critics also point out that since each of the provisions of the Bill of Rights were proposed as separate amendments, to be debated and ratified separately, and indeed, two of the proposed articles were not ratified at the time, and one of them, the second in the proposed twelve, was not ratified until after the passage of over 200 years, as the 27th Amendment in 1992. Therefore, more restrictive language in what became the First Amendment could have no bearing on the coverage of the restrictions contained in the remaining amendments.

There is also a cogent argument against this doctrine: Congress decided against inserting the amendments into Article I Section 9, which would have confined them to be restrictions on Congress, and instead appended them to the original Constitution, thus removing any such restriction. The First Amendment was explicitly confined to Congress, but the other amendments were not. Placing them at the end made them federal questions, and extended the jurisdiction of federal courts to include cases involving those rights between an individual and his state.

The reason for the decision is apparent. it was about the Fifth Amendment, and that amendment contains the Due Process clause. If Justice Marshall had accepted federal court jurisdiction, he would have, logically, opened the way for any slave to challenge his slavery in federal court on the grounds that his right of liberty was deprived without due process of law. That result may not have been anticipated or intended by the Framers of the Bill of Rights, but it is the unavoidable implication of the language they chose, and regardless of their intent, they are responsible for their langauge, with all of its implications, anticipiated or not, and we are bound by it.

If we examine the debate in the First Congress more closely, however, it seems clear that the restriction to "Congress" in the article that was to become the First Amendment (when proposed, it was the third) was only intended as a prudential tactic to avoid opposition to its ratification from the many states that then had "establishments of religion", mainly in the form of taxes that were more or less fairly distributed to at least churches of most protestant denominations in the state. Within a few years after adoption of the Bill of Rights on December 15, 1791, every state that had "established" religion had either adopted their own constitutional amendments disestablishing religion, or simply discontinued the practice. But the language of the First Amendment remained.

This raises a debate concerning the nature of the Bill of Rights. Are they positive law, restrictions on the powers of government, either just federal, or on both federal and state, which would not exist if they were repealed; or are they recognitions of fundamental rights that pre-exist government at all levels. The semantic difference is critical, because of the language of Art. III, Sec. 2, that "The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, ..." If the provisions of the Bill of Rights are only positive law, then their repeal would remove them from "arising under this Constitution" and therefrom the jurisdiction of the federal courts, and the restriction of the First to "Congress" would deprive the federal courts of jurisdiction over violations by Congress and not by the states. If they are fundamental and pre-existing, then they would fall within the Equity jurisdiction of the federal courts, and the federal courts would have at least appellate jurisdiction over state cases in which the issue is a violation of a right of an person by a state.

The theory of government under which the Constitution was developed is the theory of natural law. This theory supports the doctrine that certain rights are fundamental and pre-exist government, either natural rights arising from the primal "state of nature", or civil rights arising from the "social contract", but before the society thus created established a government for itself. That is not to say that the rights recognized in the Bill of Rights are all natural rights, but they are instrumental rights to natural rights, which arise out of the social contract and the common law tradition of government leading up to the Constitution, nonconflicting parts of which were incorporated into it, which we classify as "civil". But one of the tenets of this theory is that all natural and civil rights are necessarily also constitutional rights, whether explicitly recognized or not. Of course, constitutional rights can also include rights, such as the right of citizenship, that only make sense in the context of a constitutional order, and that we therefore say arise from a constitution proper, and not from nature or the social contract that precede it.

The main implication of this doctrine is that the federal courts have either original or appellate jurisdiction over cases involving violations of constitutional rights by an official or agent of government at any level, regardless of whether the rights are explicitly protected.

In the debates that led to the adoption of the Bill of Rights, Madison and other proponents asserted that the rights mentioned in the Bill of Rights did indeed represent rights more fundamental than the government being established by the Constitution, and that the language of the Bill of Rights did not add anything to the Constitution that was not implicit in the lack of powers delegated in that Constitution to restrict these rights. These comments are important, if only because they provide guidance on how the delegations of powers were to be interpreted.

The argument made by Justice Marshall in his dictum in Barron is that the Constitution established only the federal government, and therefore any recognition of rights it might provide were only against that government. This argument implicitly denies that the rights are fundamental and pre-existing, and offers as evidence that most of these rights were not recognized by the states that participated in the formation of the union. The reply that may be made to this argument is that the failure of previous state governments to recognize these rights is not evidence that the rights are not fundamental. The fact that they had not yet been fully recognized does not mean that they didn't pre-exist or were not fundamental, any more than that the law of gravity did not exist before Newton discovered it. Moreover, it is not strictly true that the federal Constitution established only the national government. It also implicitly re-established the existing state governments on a new foundation, and although they might continue operating under their previous state constitutional documents, in fact those were no longer the same constitutions, and not just amended by the conventions that ratified the federal Constitution.

For the sake of complete accuracy, it should be mentioned that the Bill of Rights does contain one element of positive law: the twenty-dollar rule of the Seventh Amendment. However, at the time "dollar" was a coin, the Spanish taler, containing 416 grains of silver of standard purity, so 20 such coins would represent about $92 in federal reserve notes at the prevailing prices of silver during March, 1999.

The best argument in support for Marshall's ruling in this case is that, while the state courts are bound to enforce the provisions of the Bill of Rights, the federal courts, including the Supreme Court, lack appellate jurisdiction, because it would be a case between a citizen and his state, and that is not one of the cases enumerated in Art. III Sec. 2 as within the judicial power, that is, the jurisdiction, of the federal courts, which specifically enumerates cases between a state and a citizen of another state (later repealed by the 11th Amendment) and citizens of different states, but not between a citizen and his own state, or two citizens of the same state. The validity of this argument depends on the provisions of the Bill of Rights not providing a basis for cases "arising under this Constitution" even though they are between a citizen and his state. By this argument, since the provisions of the Bill of Rights are only rights against the actions of government, they would not provide a basis for federal jurisdiction of cases between citizens of the same state.

In short, state courts are bound to enforce the provisions of the Bill of Rights, but if they fail to do so, the federal courts, lacking jurisdiction, can provide no remedy.

The problem with precedents is that they tend to become misconstrued themselves. What has happened since Barron is that the opinion that the federal courts lack jurisdiction to decide cases if the state courts fail to do their duty to enforce the provisions of the Constitution and the Bill of Rights has been transformed into the doctrine that the provisions of the Bill of Rights are intrinsically only restrictions on the national government, and that therefore state courts are not obliged to comply with them, and states may violate their provisions.

But what about the other restrictions on the states contained in the Constitution, specifically Art. I Sec. 10 and Art. IV.? If these provisions are beyond the jurisdiction of the federal courts, then why did the federal courts accept jurisdiction of cases involving them, or cases which decided that delegated powers like the power to regulate commerce among the states was an exclusive delegation to Congress and denied to the states? Or violations of the prohibitions against ex post facto laws or bills of attainder? By the plain language of all of the articles of the Bill of Rights except the First, their restrictions are general, not limited to Congress or the states. Grammatically, there is no difference between those articles and the other provisions in the Constitution which restrict the states and over which the federal courts accepted jurisdiction.

One can make the case that federal jurisdiction over a case of civil rights should not be accepted until after the citizen has exhausted all civil remedies his state provides, which would usually mean that he has appealed to his state's supreme court and either lost or had the case denied certiorari. But there is a lack of basis for denying that it can accept jurisdiction thereafter on the basis that the provisions of the Bill of Rights do not establish a basis for cases "arising under this Constitution", unless jurisdiction is similarly denied for the restrictions on the states in Art. I Sec. 10 and Art. IV.

The decision in Barron cannot be fully understood without considering the political pressures on the Marshall court, because it made political decisions. In 1833 there was increasing dissent over usurpations of power by the federal government, leading to arguments like those of John C. Calhoun advocating the doctrines of concurrent majority, interposition, nullification and state secession, to correct what he perceived as a defect in the design of the Constitution that permits a persistent majority to dominate all three branches of government and legislate against the interests of a minority to the point where they would consider their rights violated. Ironically, the acceptance of jurisdiction by the federal courts in cases of civil rights were perceived as further usurpation, particularly because they would have laid the basis for the judicial emancipation of slaves. Therefore, we can see Barron as a decision like that of Dred Scott, intended to avoid a rupture among the states. At the time the rights recognized in the Bill of Rights were being violated by state courts in the slave states, which is what laid the basis for the 14th Amendment following the Civil War. We can see Barron as an attempt to evade a confrontation.

The decision in Barron can also be viewed in the light of the 14th Amendment, which added an additional set of restrictions on the states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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." Although the 14th also added language delegating the power to Congress "to enforce, by appropriate legislation, the provisions of this article", it did not, grammatically, explicitly add to the jurisdiction of the federal courts, yet it has been interpreted to have done just that, even though the original Constitution provided in Art. I Sec. 8 Cl. 18 "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States", which certainly applied to the provisions of the Bill of Rights after they were adopted and became part of the Constitution. What is interesting about this, however, has been that the Supreme Court has not extended the protection of all the provisions of the Bill of Rights to the states, but has followed a doctrine of "selective incorporation", enforcing all or parts of the First, Fourth, Fifth, Sixth and Eighth Amendments, but not the Second, Third, Seventh, Ninth, or Tenth Amendments, or part of the Fifth. The inconsistency of this selection is grammatically indefensible, and is a continuing source of constitutional difficulty.

There is a open question, however, concerning whether the 14th Amendment was properly ratified. If it were to be found not to have been ratified, but the decision in Barron was overturned to extend federal appellate jurisdiction to cases in which individuals claimed the protection of the Bill of Rights against a state government, where would that leave us, particularly regarding the First Amendment, the language of which clearly applies only to the national Congress? The answer is that Congress would lose its power to legislate to protect civil rights against infringement by a state, but federal court jurisdiction would cover all the same cases, and the protections of the First Amendment can be found in the Ninth and Tenth Amendments, which if applied to the states would eliminate a great deal that is not authorized by their constitutions. Having more than one way to overturn unconstitutional state action could be a good thing.

Barron was wrongly decided, and needs to be overturned judicially, not just by amendment. Federal courts should not accept jurisdiction of state civil rights cases unless or until all recourse within the state courts has been exhausted, but it should accept jurisdiction over appropriate cases involving any of the rights recognized in the Bill of Rights after that has occurred, and extend all of those protections to cases between a citizen and his state. Especially important are the protections of the Second Amendment, the right to a grand jury of the Fifth, and the right not to have state officials or their agents exercise undelegated powers.

The doctrine of "incorporation" itself is a wrong concept, and that by the decision to place the first ten amendments at the end of the Constitution, rather than to insert them into Art. I Sec. 9 (or 10), all but the first were made federal questions, and thus extended the jurisdiction of the federal courts to cases involving those rights, between an individual and his state. Although the First Amendment only restricted Congress, the same rights are also protected by the Ninth against the states, and made federal questions.

During the debates on the 14th Amendment it was emphasized more than once that the amendment was intended to overturn Barron and also Dred Scott. The meaning of much of its language becomes clear if one realizes that was its intent.

So there is no question of whether "incorporation" comes from the Due Process or the Privileges or Immunities clause. It recognizes rights and remedies, and does so retroactively, to Dec. 15, 1791, and even before, because such rights pre-existed the Constitution, and apply to all persons everywhere and for all time. The jurisdiction of courts may not be restricted to exclude consideration of fundamental rights. They must be recognized and enforced by all courts everywhere, regardless of what other jurisdictions they might have, from the lowest traffic court up to the Supreme Court. No exceptions.

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