JOHN BARRON, SURVIVOR OF JOHN CRAIG, FOR THE USE OF LUKE
TIERNAN, EXECUTOR OF JOHN CRAIG v. THE MAYOR AND CITY
COUNCIL OF
32
U.S. 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,
[***9] which inhibits the taking
of private property for public
use,
without just compensation. He insists that this amendment, being in favor 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
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
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
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 [***10] 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 [*248]
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 [***11] 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
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 [***12]
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
government of all, no limitation of the action
of government on [*249] 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 [***13] 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
[**675] of the general
government, and on those of the states; 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
[***14] encroachments of their
particular governments: the remedy was in their own hands, and would have been
applied by themselves. A convention
[*250]
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
[***15] of the
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 [***16] of power by the government [*251]
of the
legislation of the states. We are therefore of
opinion that there is no repugnancy between the several acts of the general
assembly of
the
defendants at the trial of this cause, in the court of that state, and the
constitution of the
is
dismissed.
This
cause came on to be heard on the transcript of the record from the court of
appeals for the western shore of the state of
on
consideration whereof, it is the opinion of this court that there is no
repugnancy between the several acts of the general assembly of
the
defendants at the trial of this cause in the court of that state, and the
constitution of the
writ of
error be, and the same is hereby dismissed for the want of jurisdiction.