The Bill of Rights in the Early State Courts
The Bill of Rights in the Early State Courts
Jason Mazzone, 92 Minn. L. Rev. 1 (2007)
For legal scholars, a key chapter of this story is Chief Justice John Marshall’s decision for the United States Supreme Court in 1833 in Barron v. Baltimore. Barron, affirming the decision of the Maryland state court, rejected the claim of John Barron that the city of Baltimore violated the Takings Clause of the Fifth Amendment when it took his property for a public use without compensating him for the loss. Today, Barron is universally understood as standing for the proposition that in the pre-Civil War era, the Bill of Rights simply did not constrain the states: the protections the Bill secured were held only against the federal government. On this account, an important effect of the Fourteenth Amendment was, therefore, to reverse the Barron decision. Today, in contrast to 1833, state government, like the federal government, is required to provide compensation if it takes an individual’s private property for a public use.
This Article argues that the modern understanding of Barron is incorrect. The modern understanding misses what the Supreme Court did in the Barron case, how the case was understood at its time, and the impact of the Court’s decision. Further, because the prevailing modern understanding of Barron is wrong, the story with which I began–the story of the transformation of the Constitution after the Civil War–is also deficient. Barron, this Article suggests, did not hold, as it is conventionally believed, that the Bill of Rights did not in any circumstances apply to state government. Rather, Barron simply affirmed the unremarkable proposition that the federal courts would not apply the Bill of Rights to constrain state government. Both before and after Barron, even with the decision in place as binding precedent, state courts were free to apply the Bill of Rights to the states.