3 The Scope and Incorporation of the Bill of Rights before the Civil War

Here we address the “incorporation” of the Bill of Rights, the process by which rights that once only protected citizens from the federal government would come to protect them from state governments as well.

Keep in mind that when the Constitution was written, state governments were longstanding political entities that generated social identities and to which citizens had preexisting political loyalties. By contrast, the newly constituted federal government was an unknown entity. The Anti-Federalist complaint that the original Constitution lacked a Bill of Rights was largely driven by fear of a federal government that would be—by design—considerably stronger than the weak government created by the Articles of Confederation. This view also dominated the discussion of the Bill of Rights in the First Congress. When Madison proposed an amendment that would prevent states from violating the right of conscience, press freedom, or trial by jury, for example, it was soundly rejected as unneeded or intrusive.

Given this dynamic, it’s unsurprising that in the years between the Founding and the Civil War, legal elites agreed that the Bill of Rights only protected citizens against actions taken by the U.S. government. If a state government violated your rights, your remedy was to appeal to your state constitution and state court system. This state of affairs was referred to as dual citizenship, in which an individual was simultaneously a citizen of their state and the nation, with different protections within each realm. This view fit well with the traditional notion of police powers and 19th-century notions of federalism; it also made it nearly impossible for the US government to protect individuals from state action. When southern states kidnapped free black sailors who went ashore at southern ports as threats to public order, for example, there were few actions other states or the US government could legally take.

The first case in which the Supreme Court faced the question of whether the Bill of Rights should be applied or incorporated against the states is also the best-known antebellum ruling in support of dual citizenship. In Barron v. Baltimore (1833), a man who failed to gain relief in the Maryland state court system appealed to the Supreme Court, in hopes of benefitting from the protections granted by the Fifth Amendment’s Compensation Clause. The Court unanimously ruled against Barron, holding that state governments were not bound by the Bill of Rights.

Barron v. Baltimore

32 U.S. 243 (1833)

Facts: John Barron owned a profitable wharf (dock or pier) in the city of Baltimore. The city undertook a series of street repairs and other internal improvements, which had the unintended result of depositing sand and dirt at Barron’s wharf (among others). The water level near the wharf became too shallow to accommodate the docking of most ships, meaning that the property lost almost all of its value.

After failing to persuade the city to either remove the dirt from their wharf or compensate them in some fashion, Barron and his partner sued the city in Maryland courts. After a win in county court was reversed on appeal, Barron appealed to the United States Supreme Court, arguing that Baltimore’s actions had “taken” his property without just compensation, and thus violated the Fifth Amendment of the Constitution.

Question: Did the Bill of Rights—here the Fifth Amendment—apply against the states as well as the federal government?

Vote: No, 6-0

For the Court: Chief Justice Marshall

CHIEF JUSTICE MARSHALL delivered the opinion of the court.

… The plaintiff in error contends that… the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation… 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…

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 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. 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…

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… 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 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… This court, therefore, has no jurisdiction of the cause, and it is dismissed.