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.

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 17, 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. 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.


