Con Law IIRights and the States

The Bill of Rights and the States

In Barron v. Baltimore (1833) Chief Justice Marshall held that the Bill of Rights limited only the federal government, so Baltimore owed no just compensation under the Fifth Amendment for ruining a wharf.

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Note: This is an educational course, not legal advice.

Constitutional Law II is about the rights side of the Constitution: what government may not do to people. Before any right can be applied, a lawyer asks a first question: which government does this right limit? You met the short answer in Civics: selective incorporation, and the method of sorting laws by tier in Con Law I: choosing the tier. This course starts where that answer started, in 1833.

Why it works

Marshall read the Constitution as a whole. The people of each state had already written a state constitution to limit their state government. The federal Constitution, he wrote, was made "by the people of the United States for themselves, for their own government, and not for the government of the individual States." When the framers meant to bind states, they named them, as in Article I, Section 10 ("No State shall enter into any Treaty… pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts"). The Fifth Amendment names no state, so it limits only the national government. The First Amendment is even plainer: it begins "Congress shall make no law."
TextWhom it limitsWhy that matters
Article I, Section 9: "No Bill of Attainder or ex post facto Law shall be passed"Congress (it sits in the article about Congress)general words, read in context
Article I, Section 10: "No State shall…"the states, by namethe framers could name states when they meant to
First Amendment: "Congress shall make no law…"Congress, by namethe plainest case
Fifth Amendment: "…nor shall private property be taken for public use, without just compensation"under Barron, the federal government onlyno state is named

Key idea

In Barron v. Baltimore (1833), a unanimous Court held that the Bill of Rights limits only the federal government. Until the Fourteenth Amendment, people looked to state constitutions and state courts for protection against their states.

Worked example: A newspaper in 1840

In 1840 a state legislature closes a newspaper that criticized the governor. The editor sues in federal court under the First Amendment. What result under Barron?
  1. Ask which government acted: the state.
  2. Under Barron, the First Amendment (which says "Congress shall make no law") did not limit states.
  3. The editor's claim had to rest on the state's own constitution, in state court.

Answer: No federal claim in 1840; the editor must rely on the state constitution.

Worked example: The same facts, two governments

In 1850 Congress builds a post road and takes a farmer's field without paying. In the same year a county takes another farmer's field for a road without paying. Which farmer has a claim under the Fifth Amendment?
  1. The Takings Clause limits the federal government, so the first farmer has a federal claim.
  2. Barron says it does not limit states or their counties and cities.
  3. The second farmer must look to state law. Today both would have a claim: the Court has applied the Takings Clause to states through the Fourteenth Amendment (Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897)).

Answer: Only the farmer whose land Congress took, in 1850.

Common mistake

Assuming the Bill of Rights always bound the states. It did not: for its first 77 years it limited only the federal government, and Barron said so in 1833. Quick check: when you read an old case against a state, look for the clause the claim used. Before 1868 it is a state constitution or a clause like Article I, Section 10 that names the states.
From the Bill of Rights to the first steps of incorporation.

Barron also shows why the Fourteenth Amendment mattered so much. After the Civil War, its Section 1 for the first time wrote into the federal Constitution limits aimed squarely at the states: "No State shall make or enforce any law…" The next three topics follow what the Court did with those words: the Slaughter-House Cases, selective incorporation and state action.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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Sources and further reading

@teddyrookbook GitHub