Barron
v. Mayor & City Council of
Abridged by Instructor
Mr. Chief Justice MARSHALL
delivered the opinion of the court.
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
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. It 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
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 intrusted 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 intrusted
to the government of the
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 could have
been applied by themselves. A convention could have been assembled by the
discontented State, and the required improvements could 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
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 [p*251] 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.