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Barron v.
Baltimore
7 Pet. 243 1833
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 twenty-fifth section of the
judicial 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
favour 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 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 farther 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. In 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 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 entrusted 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 entrusted 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 would have been applied by themselves. A convention would
have been assembled by the discontented state, and the required improvements
would 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 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.
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