Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (19 page)

A Bill of Rights to Protect
the Sovereign States

Even John Marshall conceded, in Barron v.
Baltimore (1833), that the Bill of Rights did
not affect the powers of the states, but
only those of the federal government.

This was the context of Marshall's last significant constitutional decision,
Barron v. Baltimore (1833). The city of Baltimore, Maryland, had, in the
course of making city improvements, altered
the flow of water into the Chesapeake Bay,
which in turn led to a buildup of silt around
the wharf of John Barron. Barron said the
value of his wharf had been so damaged that
it amounted to a government seizure of his
property for which he ought to be compensated by the city under the Takings Clause of
the Fifth Amendment ("... nor shall private
property be taken for public use without just
compensation").

Marshall described the issue as one of
"great importance, but not of much difficulty." The Fifth Amendment, like the rest of the Bill of Rights, had been
adopted as a limitation on the federal government alone. The movement
to affix amendments to the Constitution arose out of fears that the new
government was too powerful, and the amendments' purpose was to hedge that power. Thus, if Barron wanted Baltimore to be forced to compensate him for its injury to his property, he would have to seek his remedy in a state, not a federal, court.

In the end, then, Marshall decided a constitutional case correctly. This
outcome calls to mind the old saying about the stopped clock.

ven before John Marshall left office feet first in 1835, the winds
of change were already buffeting the Supreme Court. First, a succession of Republican presidencies undercut his sway within the
Court itself. Finally, Andrew Jackson's election in 1829 brought to power
a man with a completely novel understanding of the federal system.

In 1832 Jackson vetoed a bill to recharter the second Bank of the
United States. In his Bank Bill Veto Message, Jackson said that the McCulloch v. Maryland decision had not decided the issue of the 1816 bank
charter's constitutionality. It might be that the Supreme Court thought so,
he said, but he was sworn to uphold the Constitution as he understood
it, not as the Supreme Court told him it was. As he adhered to the Jeffersonian view of congressional authority, he based his veto in part on the
recharter bill's unconstitutionality.

Jackson also decried what he called the tendency of government to rain
its blessings solely on the rich. In the manner of Jeffersonians before him
and the Democrats he led, Jackson viewed banking as little more than a
mechanism by which bankers could print money for their own benefit.
The congressional requirement that federal tax revenues be deposited
solely in the Bank of the United States ensured that the bank would make
a profit. This profit would be realized as a transfer of money from the populace at large to a few wealthy, well-connected shareholders, some of
whom (gasp!) were British.

Guess what?

-.' Chief Justice Roger
B. Taney was one
of the ablest in the
history of the
Court-and also
one of the most
disastrously
political.

-40 Anti-slavery had
been divisive from
the beginningand it was only the
constitutional
protections for
slavery that
brought and kept
some Southern
states into the
Union.

In the early nineteenth century, corporate charters were special privileges. Businessmen could not simply pay a nominal fee and fill out a
short form to incorporate their companies, as they can today. Instead,
they had to secure special legislation granting them the privileges of the
corporate form: limited liability of shareholders and immortality of the
corporation. Jackson was right, then, to see incorporation as a special
privilege to which average men had virtually no access.

Not only did Jackson veto the bank recharter, but he also ordered his
secretary of the treasury, Louis McLane, to remove the federal deposits
from the Bank of the United States. McLane, mindful of the law requiring him to deposit the funds in the Bank, refused. Jackson fired him. It
took Jackson a while and another short-lived secretary to come upon
someone willing to ignore plain statutory requirements at the president's
behest, but he finally lit upon the person of Roger B. Taney.

Jackson would reward Taney for his subservience by appointing him
to replace John Marshall as chief justice of the United States. Serving in
the post from 1836 to 1864, Taney would ultimately become the most
controversial chief justice in American history. He also is generally
regarded as among the ablest. Among his accomplishments was the elimination, at least by implication, of some of the Marshall Court's more
absurd pronouncements.

The difference between Taney and Marshall is most clearly to be found
in the 1837 case of Charles River Bridge v. Warren Bridge. That case
involved the Massachusetts legislature's powers and the Constitution's
Contracts Clause. Under a 1785 grant, the legislature had given the
Charles River Bridge Company a charter to build a bridge connecting Boston to towns to its north, along with the power to collect tolls. In
1828, it authorized the Warren Bridge Company to build a new bridge
nearby and collect the tolls necessary to pay for the construction; once
the construction costs had been covered, the bridge was to revert to the
Commonwealth and tolls would cease to be collected.

Daniel Webster, who had represented Dartmouth College in the Marshall Court's signal Contracts Clause/charters case, argued that the Contracts Clause forbade the Massachusetts legislature's 1828 action. He said
that this amounted to a repeal of the Charles River Bridge Company's
charter, as it would become impossible for the Charles River Bridge Company to collect any tolls once a free bridge stood close by.

For the majority, Taney ruled against Webster and the Charles River
Bridge Company. Writing in dissent, justice Joseph Story argued that the
1785 grant to the Charles River Bridge Company should be construed
"liberally"-inferring an implicit promise that nothing would be done to
eliminate the value of the charter, such as chartering another company to
build a free bridge nearby. In private correspondence, Story lamented the
passing of the old Federalist order on the Court, saying that he was certain his old friend Chief Justice Marshall would have ruled differently
from Taney.

But in his opinion for the Court, Taney said that disputes about grants
by the public, when their implications were unclear, must be decided in
favor of the public. "The object and end of all government is to promote
the happiness and prosperity of the community by which it is established," he wrote, "and it can never be assumed, that the government
intended to diminish its power of accomplishing the end for which it was
created."

Technology had advanced rapidly since 1785, and Taney's opinion
reflected that fact. The country was "continually advancing in numbers
and wealth," he wrote, so that "new channels of communication are daily
found necessary, both for travel and trade, and are essential to the comfort, convenience and prosperity of the people.... And when a corporation alleges, that a State has surrendered for seventy years its power
of improvement and public accommodation, in a great and important line
of travel ... the community have a right to insist that its abandonment
ought not to be presumed, in a case in which the deliberate purpose of
the state to abandon it does not appear." State power, he concluded in
language evocative of Jackson's Bank Bill Veto Message, should never be
presumed to have been transferred "to the hands of privileged corporations."

Clearly much had changed since Dartmouth College v. Woodward.
Note what had not changed, however: Taney and his colleagues did not
undo the Marshall Court's egregious holding that a charter is a contract
under the Contracts Clause. They merely read the charter in the Charles
River Bridge case as not binding the state beyond its bare terms, construed narrowly. Where doubt was found, in other words, they would err
in favor of the public, but without undoing the Marshall Court holding at
root. This pattern of non-correction has come to characterize Supreme
Court decisions revisiting dubious earlier decisions. Very seldom does
the Supreme Court reverse an earlier holding when it first notices that it
was simply wrong.

This tendency of the Taney Court to respect state legislation the Marshall
Court would have struck down was also clear in the 1837 case of Briscoe
v. Bank of Kentucky. Article I, Section 10 of the Constitution prohibits the
states from, among other things, issuing bills of credit. The question in
this case was whether that prohibition applied to the Bank of Kentucky,
a corporation owned by the state of Kentucky. The Court ruled that the
prohibition did not apply, because the bank was not the state itself and
the bills of credit were redeemable by the bank, not by the state. This decision allowed state banks to step into the breach left by Jackson's elimination of the Bank of the United States; they could issue notes that were
the equivalent of paper money.

Also in 1837, in an opinion by justice Philip P. Barbour (a Virginian
neighbor of James Madison and staunch devotee of Jeffersonian principles), the Court decided in New York v. Miln to rein in Marshall's
absurdly nationalistic Commerce Clause opinion in the 1824 steamboat
case Gibbons v. Ogden. As in Charles River Bridge, however, the correction was merely implicit.

Miln involved state regulation of the port of New York. That state
required ship captains to provide authorities with lists of the passengers
on their ships, post bond for indigent passengers, and remove certain
indigent aliens. The defendants protested that this violated the Commerce Clause. Justice Barbour, however, for the Court said that the New
York law was merely a police law, and insisted that a state could as well
protect itself against "the moral pestilence of paupers, vagabonds, and
possibly convicts" as against "the physical pestilence" of sick people. A
concurring justice pointed out that state commercial regulations had previously been ruled unconstitutional (in the Gibbons steamboat case)
only when they conflicted with federal ones. Justice Story dissented, citing Gibbons to argue that Congress had exclusive power over regulating
commerce. No one joined Story's dissent.

Portrait of a Justice

Roger Taney (1777-1864) reined in the Marshall Court's constitutional nationalism in a series of decisions from the 1830s through the 1860s. He also braved
the arbitrary government of Abraham Lincoln in cases such as Ex parte Merryman. His name is most associated, however, with the invention of "substantive due process" (the last
refuge of judicial scoundrels) in Dred Scott v. Sandford-a blatantly partisan, rigged decision by the
Court's Democratic majority. It should not surprise that Taney sank to such partisanship, because his
appointment to the Court had been owing to his willingness as treasury secretary to follow Andrew
Jackson's order illegally to remove the federal deposits from the second Bank of the United States.