Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty

by William Davenport Mercer

Overview

The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore’s rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig’s wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city’s actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court’s decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century.

Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron’s claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered.

In explaining how the Court came to reject a multisourced view of human liberties—a position seemingly inconsistent with its previous decisions—William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall’s view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer’s work makes clear, is among the Jacksonian era’s significant democratic reforms and marks the emergence of a distinctly American constitutionalism.

Product Details

ISBN-13:	9780806156026
Publisher:	University of Oklahoma Press
Publication date:	04/13/2017
Series:	Studies in American Constitutional Heritage , #3
Edition description:	New Edition
Pages:	296
Product dimensions:	6.40(w) x 8.90(h) x 1.30(d)

About the Author

William Davenport Mercer is Lecturer in the Department of History and the College of Law at University of Tennessee, Knoxville.

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Diminishing the Bill of Rights

Barron v. Baltimore and the Foundations of American Liberty

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By William Davenport Mercer

UNIVERSITY OF OKLAHOMA PRESS

Copyright © 2017 University of Oklahoma Press, Norman, Publishing Division of the University
All rights reserved.
ISBN: 978-0-8061-5602-6

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CHAPTER 1

American Amsterdam

From the small quantity of ground originally taken for the town, and from the difficulty of extending the town in any direction, as it was surrounded by hills, water-courses or marshes, it is evident that the commissioners did not anticipate either its present commerce or population. The expense of extending streets, of building bridges, and of leveling hills and filling marshes, to which their successors have been subjected, and which unfortunately increases that of preserving the harbor as improvements increase and soil is loosened, have been obstacles scarcely felt in other American cities.

Col. Thomas Scharf (1874)

Court cases arise out of particular needs, desires, and conflicts between actual people seeking some resolution. Countless files in courthouse basements hold records of the hopes, fears, aspirations, and anxieties of people who ended up before some tribunal to hear their dispute. Whereas a few cases achieve a degree of significance from the beginning, the vast majority of litigants do not expect their names to end up as shorthand for legal principles. William Marbury wanted his commission delivered, Dred Scott wanted his freedom, and Clarence Earl Gideon wanted an attorney; however, these names became enshrined in the American constitutional imagination as representing something monumentally larger than the story of a single person seeking their day in court.

John Barron was not much different. However, now only his surname is invoked to succinctly stand for the principle that the Bill of Rights did not originally apply to the states. This obscures the essential narrative much in the same way that simply equating Marbury v. Madison as standing for the principle of judicial review fails to recognize the deep conflict between Republicans and the Federalists who lost in the "Revolution" of 1800. Similarly, if we reopen John Barron's court file, we see that this dispute was much more than a dispassionate conflict over the balance of federalism, the role of the federal courts, the basis and nature of individual rights, or even the location of sovereignty in the early republic. While all of these themes ultimately emerged at one point or another, Barron's story can give us a window on early Baltimore if we care to look past the case opinion docketed in the Supreme Court reporter. What we discover are two merchants trying to succeed in a rapidly expanding port city of the early American republic. The story of their early success and ultimate failure is not just one of individuals who did not make it. Instead, their journey illuminates the changes that all Baltimoreans were navigating in this era. Because its port gave it the ability to tap into international trade, Baltimore rapidly became one of the country's largest cities. People like Barron hoped to take advantage of the countless opportunities offered by Baltimore's position.

However, this expansion came at a price. As the city grew, it could no longer act as if it were still the communal hamlet of the early 1700s. Muddy streets needed paving and straightening, the harbor required constant deepening and maintenance, and, most important for our purposes, the water pouring through the city demanded attention. Besides John Barron, we also see in this drama many other players who were reacting to these changes: his business partner, John Craig; their dubious benefactor Luke Tiernan; their families; the attorneys; the judges; neighboring wharf owners; the other residents of Fell's Point; and the mayor, city council, and city commissioners, to name just a few. We will assess all of their roles. In addition, we will see that water, sand, and silt are at a fundamental level also principal actors in this story. Long before John Barron battled the city for his wharf, the inhabitants of Baltimore struggled to solve the problem of living on a stretch of land that lies between steep hills and a marshy river. The story of their struggle is the foundation on which Barron's story stands, and it is where to begin.

The location of Baltimore makes sense from the perspective of a political map, where elevations and drainage are not taken into account. The most famous depiction of early Baltimore — the 1822 Poppleton Map, after its namesake Englishman Thomas Poppleton — is a classic example of this approach and its deficiencies. The city hired Poppleton to design the map over several other qualified local candidates, primarily because of his ability to create highly artistic work, and his finished product is a testament to those wishes. Poppleton's creation attractively detailed the streets and neighborhoods that constituted early Baltimore, and he ringed the border of his map with illustrations of its handsome buildings and landmarks. Revised and updated with a color version in 1852, it endured as the authoritative map of Baltimore until 1896. However, like all political maps, Poppleton's work was in many ways an idealized projection of society's mastery over its natural surroundings. For all its detail and artistry, Poppleton failed to include any sense of topography, giving the impression that Baltimore was at peace with its surroundings. If, however, one were to consider early Baltimore on a physical map, the resulting picture would not be as serene. Baltimore County drops dramatically toward the Chesapeake Bay, with the elevation in some places reaching five hundred feet only ten miles north of downtown. For comparison, farther south along the Potomac River, a similar drop in elevation takes more than one hundred miles.

These types of environmental challenges are the backstory to Barron v. Baltimore and to the creation and evolution of the city itself. The level, fertile land and accessible waterways that attracted thousands of European immigrants to Virginia and Maryland beginning in the seventeenth century stopped at the Patapsco River, the southernmost boundary of Baltimore County. North of the Patapsco, the desirable plain gave way to more rugged, mountainous terrain unsuitable for traditional farming, causing most early English settlers to cede the piedmont to fur traders and hunters. As a result, for much of its early history the county of Baltimore was the least populated in Maryland. Baltimore was laid out along the low-lying tidewater abutting the Patapsco River, which rises sharply to the piedmont. It is ringed by a line of higher ground approximately thirty miles away, beginning at the Susquehanna River in the north and ending at the Potomac River in the south, which allows for natural drainage to the Patapsco and Chesapeake Bay, often through the city itself. Baltimore was originally divided by several falls, rivers, and streams that ran through the city, turning much of the shoreline into an ill-defined marsh that provided a perfect breeding ground for mosquitoes. For much of its early existence, Baltimore was faced with the task of trying to mitigate these difficulties inherent in its founders' choice of location.

In 1729, the colonial governor, Benedict Leonard Calvert, authorized the laying out of a town on a designated sixty-acre parcel north of the Patapsco, to be called Baltimore Town after his family's peerage title. Soon thereafter, in 1732, the colonial governor authorized the surveying and parceling of lots east of Baltimore Town. These later became Jones Town, or Old Town, which was incorporated as a part of Baltimore in 1745. Again, geography and water presented problems. Particularly troublesome was Jones Falls, which carried water south to the Patapsco and separated the east side of Baltimore Town from Jones Town. The falls required residents to construct bridges in order to carry on trade with Jones Town, effectively bisecting the city. Not only was this inconvenient, but the falls also had a tendency to overflow its banks. Periodic floods violently carried away bridges, carts, livestock, and any other items in the way, vexing the city government as to the best way to tame the falls. Even more troubling for the city, every day the falls silently dumped sediment into Baltimore basin, now known as the inner harbor, making it much too shallow for larger ships.

One solution that seemed viable was to expand east of Jones Town to access the Patapsco farther upriver in deeper water. Fell's Point, jutting into the river well before it dead-ends into Baltimore's ever shrinking inner harbor, proved a perfect choice. Named after Edward and William Fell, English Quaker immigrants and brothers who gradually obtained and consolidated land beginning in 1726 on the Patapsco east of Baltimore, Fell's Point was formally incorporated into Baltimore in 1781. It was an ideal destination for dockyards and for arriving and departing ships. While Baltimore continued its herculean task of keeping the shallower inner harbor from choking with sediment and debris, Fell's Point faced fewer of these disadvantages. The Fell's peninsula could naturally reach farther into deeper water and provided an attractive alternative to Baltimore, which had to contend with Jones Falls and the marshes it produced at its intersection with the inner harbor, not to mention its often-clouded land titles that discouraged capital investment.

Despite Baltimore's marshy shorelines, the habitually overflowing rivers, and the constant battle to keep the harbor free of sediment, at a macro level the city was nonetheless strategically placed to eventually take advantage of its position as a deep-water port, though it started slowly. After its first twenty-two years of existence, Baltimore Town had twenty-five houses, one church, and two taverns. By the mid-eighteenth century, this began to change. In the 1750s, the population began to increase exponentially, beginning with the disruptions resulting from the French and Indian War, which temporarily halted westward expansion and forced further growth within Baltimore. As Baltimore was situated between the fertile growing regions of southern and central Maryland and Pennsylvania, the expansion of the interior wheat market provided the spark for its early growth. German immigrants, wanting to plant a familiar crop, introduced wheat after settling in southeastern Pennsylvania in the early eighteenth century. For the rest of the century, these German immigrants spread primarily southward into central Maryland and transformed Frederick County into the agricultural center of the state. Because of poor sales and soil damage due to overproduction, planters from Maryland's eastern shore of the Chesapeake also began switching their farms from tobacco to wheat. Unlike tobacco, which was grown primarily on plantations closer to the water, wheat flourished in the Maryland and Pennsylvania interior. While tobacco planters with their waterfront locations could easily sell their crop without the need for transportation or middlemen, upstate wheat farmers could not realistically engage the market without the services of merchants in a deepwater port, and this gave Baltimore its opening. Thus, although Baltimore was initially stymied by its poor geographic qualities, its location later made it the perfect candidate to capitalize on its position between the wheat-growing interior and the larger Atlantic market.

Baltimore's success helped it attract the new residents essential to its continued growth. Supplementing the contributions made by German immigrants, several other immigrant groups arrived and benefited Baltimore, including French Acadians from Nova Scotia in 1756 and the Scots-Irish in the 1760s. Baltimore also acted as a regional magnet for domestic migration. Many of the children of rural white farmers streamed into Baltimore as the southern tobacco-growing regions dried up. Likewise, free African Americans flocked to the city from across the Chesapeake Bay region while many of their enslaved brethren were purchased by Baltimore slaveholders. This infusion of labor helped Baltimore maintain its connection to markets in southern Europe, the other Atlantic seaboard colonies, and Great Britain. Baltimore was able to capitalize on this success and became an essential port for the European colonies in the Caribbean. The city found particular success in exporting wheat, lumber, and iron goods to the West Indies, which required a nearby trading partner since Caribbean planters had long since decided to funnel most agricultural production into maximizing the output of their main cash crop, sugar.

Though it started slowly, Baltimore had seemingly awakened overnight and emerged as a major port city and a prime engine of economic development for the new republic. While international trade fueled this success, it also tied the city's economic health to world events outside its control and led to boom-and-bust cycles that characterized much of its early history. Baltimore generally thrived during periods of European instability; for example, it successfully exploited the wars between Britain and France in the aftermath of the French Revolution, supplying Spanish and French colonies in the West Indies in defiance of the British and later the French. Despite risking capture by both nations, Baltimore's merchants found the financial incentives too lucrative to pass up. The value of exports from Baltimore rose from approximately $1.7 million in 1792 to over $10 million by 1800. European conflicts like these allowed Baltimore's merchants to step into the vacuum temporarily created by preoccupied European powers and led it, less than one century from its founding, to claim the title of third-largest city in the United States.

Of course, Baltimore paid a price for tying its economic health so closely to international trade. As the new century progressed, the young nation was forced to navigate European power struggles that played out in the upheaval of the various Napoleonic Wars. For much of his administration, President Thomas Jefferson attempted to chart a course of neutrality, a plan that became increasingly difficult to maintain. While Napoleon prohibited any trade between the French-controlled Continent and Britain, Britain dictated in 1807 that all neutral countries were prohibited from trading with France or any of its colonies. In response, Jefferson proposed the first in a series of embargo acts designed to punish the British economically by outlawing the U.S. shipping trade with all foreign nations. Since Baltimore profited handsomely from foreign trade, the withdrawal of the United States from international markets devastated the city.

While the resulting War of 1812 proved a defining moment for Baltimore, it was the subsequent peace that its residents most anticipated. Following the end of the war in 1815, Baltimore attracted record numbers of new residents seeking to take part in the anticipatedpostwar prosperity. Peace with Britain would finally allow for a full resumption of commerce. John Barron and John Craig were among the many who expected that Baltimore's boom times would return. In December 1815, Barron and Craig purchased the three lots on the east side of the Fell's Point peninsula that comprised the wharf. While the succinct rule of Barron — that the Bill of Rights does not apply to the states — is known to students of U.S. constitutional law, little is known of the circumstances that gave rise to the claim, and less still about Barron or Craig themselves.

Both lived in Fell's Point, the newer and grittier section of Baltimore where most inhabitants identified as workers somehow connected to the maritime business: sea captains, riggers, mariners, sail makers, and ship carpenters. In addition, Fell's Point was home to others — laborers, carters, grocers, innkeepers, and cordwainers — who supplied the maritime workers with essentials. One of these men was John Barron. On June 2, 1807, John Barron, Jr., an Irish immigrant, was naturalized as a U.S. citizen in Baltimore. Before purchasing the wharf with Craig eleven years later, Barron's life was one of constant motion and continuous hustling to get ahead. After 1807, Barron listed his occupation alternately as "lumber merchant" or "merchant," though after losing the wharf, he described himself as a rope maker. As with his shifts in occupation, Barron's residence changed at least six times between 1807 and 1824, with him moving toward and away from the profitable docks of the shoreline as his fortunes rose and then sank. One month after naturalization, Barron was able to piece together the profits from his various business endeavors and began investing in real estate in Fell's Point. Barron was able to do so even with his modest profits thanks to the initial efforts of the Fells to attract residents.

Edward Fell, Jr., began the process of developing Fell's Point in 1761 by consolidating the four tracts he inherited into one 343-acre parcel, arranging streets, and selling lots. However, much of the credit for the success of Fell's Point lies with Ann Fell, Edward's wife, who continued to successfully market and sell lots after her husband's death in 1766. Ann Fell offered attractive financing that lured laborers, shop owners, and artisans — people like John Barron — by offering lots with no down payment and the balance payable in ground rents. This form of financing was especially attractive to persons who could not afford the full or even partial purchase price, especially during this time when both specie and credit were not readily available. Fell's financing differed from a traditional landlord–tenant arrangement in that the leases were usually for ninety-nine-year terms that were renewable, essentially forever, at a fixed annual sum. Fell's Point grew quickly as the generous financing terms allowed many Baltimoreans not only to buy property but also to act as speculators who could then subdivide the land and build row houses for further sublease. Ann Fell made sure that the land she sold attracted actual residents; she increased the land's value by including in the leases a stipulation that the purchaser would erect a home or business on the property within two years; otherwise it would revert back to her control.

(Continues...)

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Excerpted from Diminishing the Bill of Rights by William Davenport Mercer. Copyright © 2017 University of Oklahoma Press, Norman, Publishing Division of the University. Excerpted by permission of UNIVERSITY OF OKLAHOMA PRESS.
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Table of Contents

List of Illustrations ix

Acknowledgments xi

Introduction 3

1 American Amsterdam 12

2 A Spirit of Improvement 32

3 Rights before Barron 56

4 Trial 86

5 Appeal 117

6 A Question of Great Importance: Barron at the Supreme Court 139

7 Barron's Reception 175

Epilogue 205

Notes 213

Bibliography 259

Index 275

Editorial Reviews

“According to the prevailing understanding, the Marshall Court’s decision in Barron v. Baltimore (1833) was a straightforward, uncontroversial statement of constitutional law. In this thoroughly researched case history, William Mercer challenges that interpretation by bringing to light a broad debate among nineteenth-century jurists and legal commentators about the sources of rights—a debate that began before and continued long after Barron.”—Charles F. Hobson, author of The Great Yazoo Lands Sale: The Case of Fletcher v. Peck

From the Publisher