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

Opinions 

Mr. Chief Justice MARSHALL delivered the opinion of the court.

The judgment brought up by this writ of error having been rendered by the 
court of a State, this tribunal can exercise no jurisdiction over it unless 
it be shown to come within the provisions of the 25th section of the 
Judiciary Act. 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 favor 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 [p*248] 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 further 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. It 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 [p*249] 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 intrusted 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 
intrusted 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 State; 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 could have been applied by themselves. A [p*250] 
convention could have been assembled by the discontented State, and the 
required improvements could 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 [p*251] 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.

This cause came on to be heard on the transcript of the record from the 
Court of Appeals for the Western Shore of the State of Maryland, and was 
argued by counsel. On consideration whereof, it is the opinion of this Court 
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; 
whereupon it is ordered and adjudged by this court that this writ of error 
be, and the same is hereby, dismissed for the want of jurisdiction.


