Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty by William Davenport Mercer (review)

In February of 1833, an aged John Marshall delivered the final decision of his 34-year career on the U.S. Supreme Court: in Barron v. Baltimore, he effectively ruled that the Bill of Rights did not apply to state or local governments. Marshall’s judgement in Barron has puzzled scholars for two primary reasons. First, by restricting the applicability of the Bill of Rights to the federal government, the decision deviated from much of Marshall’s earlier jurisprudence that had used the Court to uphold or expand federal power. Second, Marshall’s disregard for natural-law arguments was out of sync with the prevailing practices of state and federal courts considering issues of individual rights at the time.

William Davenport Mercer’s informative and well-researched study, Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty, demystifies the Barron ruling by tracing its path to the Supreme Court and illuminating the historical conditions that shaped Marshall’s decision. Mercer’s book, the first devoted to Barron, joins a growing list of monographs that reconstruct the historical–legal context from which a single Supreme Court case arose, progressed, and was decided to better comprehend the case and its significance.¹

Barron’s genesis lay in the muddy streets of Fell’s Point, a gritty section of early nineteenth-century Baltimore that suffered from bad drainage. In 1815, John Barron, Jr. and John Craig, two ambitious middling merchants, purchased a wharf in Fell’s Point. Almost immediately they encountered a slew of problems: High construction costs, severe weather, pressing debts, and harmful stormwater debris threatened the viability of their investment. These troubles were exacerbated in 1817 when the city expanded efforts to manage these drainage problems by paving streets and constructing embankments. While benefiting some residents, the improvements injured Barron and Craig by routing the stormwater and emptying its contents near their wharf, making the surrounding area less navigable and damaging their property. After failing to obtain redress through petitions, Barron and Craig filed suit in 1822, claiming the city had taken their property without compensation in violation of the Fifth Amendment.

Mercer shows how a dispute over drainage and property damage was part of a broader discussion about the nature and origins of rights in the early United States. Economic development—and municipal efforts to direct it—intensified these debates because they often pitted the prerogatives of civic improvement against the property rights of individuals. Questions about the city’s “power to spend city funds, take property, or otherwise infringe on the rights of individual residents” loomed large (33). Mercer provides rich context for the legal debates surrounding Barron by surveying some of the era’s most influential theorists of rights and property alongside a variety of antebellum state court cases. His thoughtful exposition of writings by William Blackstone, James Kent, and St. George Tucker, to name just a few, demonstrates one of his most important claims: During this period, no dominant interpretation of the source of individual rights prevailed because jurists understood them to be founded in a complicated blend of common-law presumptions, natural rights, and constitutional texts.

Barron and Craig’s lawyers drew upon this expansive conception of rights to argue the case in the Maryland state court and the appeals court in Annapolis. However, when the case finally reached the Supreme Court, Marshall ignored this variegated understanding of rights and instead “enunciated a view of rights as emanating from written documents” (151). In its brief decision to dismiss the case, the Court unanimously ruled that the Fifth Amendment did not apply to the states because the text of the Constitution did not explicitly say that it did. Mercer contends that by framing the decision in this...