Newsgroups: bit.listserv.politics
Date:         Tue, 8 Sep 1992 19:13:00 EDT
From:         Travis Kidd <TKIDD@CLEMSON.BITNET>
Subject:      Re: Barron v Baltimore

On Tue, 8 Sep 1992 17:43:56 EDT Jamie <PL436000@BROWNVM.BITNET> said:
> Ooooh. Nice cite.
>
> 1833, by the way.
>
> Barron said that the Mayor and the City Council of Baltimore had made
> his wharf useless, by diverting the flow of streams in the course of
> construction work. The trial court awarded Barron damages, but the state
> appellate court reversed. Barron claimed that the state's action
> violated the Fifth Amendment "taking" clause. The Supreme Court had to
> decide whether that clause applied to states as well as to the federal
> government.
>
> Chief Justice Marshall wrote the opinion:


> The question [is], we think, of great importance, but not of much
> difficulty. The constitution was ordained and established by the people
> of the United States for themselves, for their own government, and not
> for the government 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....
> 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....
Whoa!  I think I disagree with the late Mr. Chief Justice Marshall.
I think that intent should generally be low on the priority of what
the Constitution means.  Intent should be used only in ambiguities, and
even then only when words that have taken on new meaning (such as "lib-
erty") don't help.  The fifth Amendment takes precedence over the
entire original Constitution.  And the 5th was written in passive
voice.  Private property SHALL NOT BE TAKEN.

If you want to literally interpret the due process clause, here's what
it REALLY means :)  --  It means that for a state to take someone's
property or life or liberty (i.e., freedom of movement and privileges
other citizens have), it must first pass a law saying something is
illegal, then it must arrest the person and charge him with doing said
something, and a jury must find him guilty.  That's all it means,
literally.  I don't mind construing more into that, even up to the
point where the Bill of Rights applies to the states--because otherwise
the due process clause only requires that a state pass a law making,
say, liberty illegal before it can deny liberty.  Major loophole.

> Marshall then mentions the ninth section of Article I, which enumerates the
> limitations intended to be imposed on the powers of the general govern-
> ment, and the tenth section, which enumerates restrictions on state
> legislatures. He reasons that since limitations on state legislatures
> are enumerated expressly, the fifth amendment could not be interpreted
> as a limitation on states unless it also included such express wording
> ("No state shall...."), which it does not.
Again, 5th overrules original.

> The Court dismissed the case for want of jurisdiction.
-Really?  I thought that Barron and Baltimore agreed to have the case
settled in our forum...THE PEOPLE'S COURT!

> Jamie
-Travis
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