The Fourteenth Amendment

So far in this series of posts I’ve discussed the various protections for property in the Constitution and the Bill of Rights, and the Supreme Court’s first important decision touching on property. As I noted in that last post on Barron v. Baltimore, the primary enduring importance of Barron lies in the Court’s holding that the protections found in the Bill of Rights only limit the federal government, and not the states.

This all changed after the Civil War, when the Republican Congress made it a condition for the rebellious states’ reentry into the Union that they assent to certain amendments to the Constitution. These amendments, among other things, abolished slavery, declared that all people born in the United States are citizens (thus overturning the Court’s decision in Dred Scott v. Sanford), and stated that all citizens should equally enjoy the liberties and privileges that citizenship promises. [The full text of these amendments can be found here.] Today we’ll focus on the 14th Amendment, which has been central to the development of constitutional law and practice since its ratification.

Section 1 of the 14th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

These provisions fundamentally altered the nature of federalism in the United States – especially the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. These clauses each asserted in their own way that the federal government would in fact protect the rights, privileges, and immunities of citizens in the United States – even against infringement from States. That is, these clauses seem to suggest that the federal constitution would henceforth protect individuals’ rights to speech, religion, bearing arms, voting, etc. from abuse by state and local governments.

In a series of important Supreme Court decisions in the decades after Reconstruction, including The Slaughterhouse Case, The Civil Rights Cases, and Plessy v. Ferguson, the reach of these Amendments was significantly limited. In these decisions, the Court held that the Privileges and Immunities Clause was basically null (Slaughterhouse), that segregation was admissible under the Equal Protection Clause so long as the separate facilities were “equal” (Plessy), and that racial discrimination by private individuals was beyond the reach of the 14th Amendment (Civil Rights Cases). These decisions have far-reaching implications though they don’t directly touch on our main interests here at DPP (if you’re interested, see the suggested reading below).

What is important here, without going into undue detail, is that 14th Amendment purported to extend significant federal power over states’ ability to infringe on individuals’ rights (especially the rights of newly freed slaves) – but the Supreme Court interpreted these new amendments in such a way as to mostly negate their immediate impact. Still, the 14th Amendment set the stage for the federalism revolution that the first Reconstruction Congress sought to affect. How this affected the law governing property rights will be the subject my next several posts in this series.

Suggested reading:

Ackerman, Bruce. 1998. We the People, Volume II: Transformations. Belknap Press of Harvard University Press.

Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.

Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.

Ely, John Hart. 1981. Democracy and Distrust: A Theory of Judicial Review. Harvard University Press.

Foner, Eric. 2002. Reconstruction: America’s Unfinished Revolution, 1863-1877, 3rd edition. Harper Perennial Modern Classics.

Gillman, Howard, Mark A. Graber, and Keith E. Whittington. 2012. American Constitutionalism, Volume I: Structures of Government. Oxford University Press.

McCloskey, Robert G. 1960. The American Supreme Court. University of Chicago Press.

Valelly, Richard M. 2004. The Two Reconstructions: The Struggle for Black Enfranchisement. University of Chicago Press.

Barron v. Baltimore

In August of 1831, the Supreme Court heard its first case in which a litigant claimed that one of his rights protected by the Bill of Rights had been violated by a State government. This was the case Barron v. Mayor and City Council of Baltimore (32 U.S. 243, 1883), and it so happens that the right alleged to have been violated was the right against uncompensated takings protected by the Fifth Amendment.

Barron v. Baltimore

John Barron was a Baltimore merchant, and co-owner (with John Craig) of a prosperous wharf in the eastern part of Baltimore harbor. Craig and Barron purchased the wharf in 1815 for $25,000. At the time it was one of only 34 wharves in the harbor. In the trial record, numerous witnesses described as among the best and most valuable wharves in the city, due to its location and the depth of the water surrounding it, which allowed for access by very large ships.

As part of a larger public works project, the city of Baltimore diverted several streams into the harbor directly adjacent to Craig and Barron’s wharf. Within a few years, sedimentation from the streams left the water there so shallow that Craig and Barron’s wharf could no longer service large vessels. In 1822, Craig and Barron sued the city for compensation (they asked for $20,000) for the decline in value of their wharf. The three judge panel instructed the jury that Barron should be awarded damages commensurate with his loss (if they find there to be such loss), even if they believe the defendants were acting in good faith for the public good. In March of 1828, the jury returned the verdict in favor of Barron, awarding him $4,500 (Craig had died by this time), which the court endorsed on May 5, 1828.

Baltimore appealed the verdict to Maryland court of appeals on July 31, 1828 (the case was argued in December of that year). The Maryland appeals court did not issue its decision until December of 1830: it held that the lower court had “manifestly erred” and ordered that the ruling “be reversed, annulled, and held entirely as void.” The award to Barron was overturned, and he was ordered to pay all court costs (the case was not remanded for retrial in the county court).

Barron immediately appealed to the United States Supreme Court, and the case was argued there in August 1831. Barron claimed that the city of Baltimore had unconstitutionally deprived him of his property without compensation, and was thus liable for damages

The Court indicated in the record a request that counsel for Barron restrict his argument to the jurisdictional question (and thus omit the tort and damages claim)). This was an inauspicious development for Barron – it meant that the Court was likely only to consider the technical legal matter of whether it (the Supreme Court) even had the power to rule on a case such as Barron’s, and would not consider the alleged damages. The Court announced its decision in January of 1833.

Barron was thus the first case in which the Supreme Court was confronted with the argument that a provision of the Bill of Rights was violated by a state government. Marshall acknowledged that this case was an important one for this reason – but, he says, one “not of much difficulty.” Marshall, speaking for the Court, argues that the central purpose of the Constitution was to create, yet limit, a new, central government – thus the provisions therein are applicable to the government created thereby. Put differently, the Constitution simultaneously created and limited a new central government – thus those limitations apply only to the central government. This argument clearly harkens to Alexander Hamilton in the Federalist 83: “The United States, in their united or collective capacity, are the OBJECT to which all general provisions of the Constitution must necessarily be construed to refer.” That is to say, it fit well within the accepted understanding of the Constitution at the time.

Marshall argues further that the provisions of the Bill of Rights fit with Article I, Section 9 (limits on Congress), and that if the Framer’s had wanted to limit the states, they could have and would have done so in “plain and intelligible language.” Thus because the Bill of Rights applies only to the federal government, Marshall concluded that the Supreme Court had no jurisdiction in the matter, and dismissed the case.

With the Supreme Court having dismissed the case, the decision of the Maryland Court of Appeals stood. Barron lost, and state (and by extension, municipal) authority to exercise broad powers over their internal affairs – including impinging on the free use of property – was affirmed. The flip side of that coin is, aggrieved individuals and groups could only seek protection of their rights in state courts, pursuant to state constitutions (in most cases).

This is no longer how things work. Individuals and groups now routinely make claims in federal courts that state or local governments have violated rights protected by the federal constitution. This is because of the so-called Civil War Amendments (13, 14, and 15 – especially 14), which fundamentally altered the nature of government in the United States. In a future post, I’ll discuss the 14th Amendment and spend some time elaborating how exactly it changed the way people make rights claims under the federal constitution. I think this case is still worth knowing because it helps us to understand how we got to where we are today – and reminds us that federal courts have not always been the ardent protectors of rights that they are often thought to be today.

 

An interesting historical aside: In 1827 (while the case was still in Baltimore county court), Roger Taney joined the case to represent Baltimore (alongside principal attorney John Scott), though Taney was no longer associated with the case when it reached the Supreme Court. Taney would go on to become Chief Justice of the Supreme Court (1836-1864), and authored one of the Court’s most infamous decisions, Dred Scott v. Sanford (in which the Court held, among other things, that African-Americans were not, and could never be, citizens of the United States).

 

Suggested Reading:

Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.

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

Doherty, Brendan J. 2007. “Interpreting the Bill of Rights and the Nature of Federalism: Barron v. City of Baltimore” Journal of Supreme Court History 32(3): 211-228.

Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.

Hamilton, Alexander (as Publius). The Federalist No. 83.