There has been much dispute as to what extent, if any, the Fourteenth Amendment to the US Constitution "incorporates"--i.e., applies against the states--the rights secured against the federal government by the first eight amendments to the Constitution, generally called the Bill of Rights. Such discussion usually presupposes that *without* the Fourteenth Amendment, the Bill of Rights would only apply to the federal government. The Supreme Court so held unanimously in the famous case of *Barron v. Baltimore*, 7 Pet. 243 (1833) http://caselaw.findlaw.com/us-supreme-court/32/243.html As a matter of interpretation of the intentions of those who drafted and ratified the Bill of Rights, this interpretation is almost certainly correct. As Akhil Reed Amar points out in "The Bill of Rights and the Fourteenth Amendment", 101 Yale L.J. 1193 (1992):
"[W]hat makes Barron's holding compelling is neither its technical parsing of Article I, nor its use of lawyerly rules of construction, nor even the narrow legislative history of the Bill of Rights in Congress. Rather, it is what Marshall near the end of his opinion called the 'universally understood' historical background of the Bill of Rights. [FN39]... [W]ithout the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. [FN42] Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words 'No State shall'-but even that modest proposal was too much for a Senate jealously guarding states' rights." http://web.archive.org/web/20100628141243/http://islandia.law.yale.edu/amar/lawreview/1992Bill.pdf
Nevertheless, *Barron v. Baltimore* IMO was not inevitable and has never lacked critics. First of all, it does not seem required by the literal language of the Bill of Rights. Except for the First Amendment ("*Congress* shall make no law...") and part of the Seventh Amendment ("any court of the United States") the first eight amendments do not refer explicitly to federal institutions, but simply refer in general terms to rights which must not be violated, without saying *who* might be doing the violation. One could well ask, "Why are unreasonable searches and seizures any more tolerable if done on behalf of the state rather than the federal government? Why should states, any more than the federal government, be allowed to take property for public use without just compensation?" In the twentieth century, the leading critic of *Barron*--largely on just this basis--has been William Crosskey in his ultra-Federalist interpretation of the Constitution, *Politics and the Constitution* (University of Chicago Press 1953).
Crosskey argues that when the First Congress wanted to apply the Bill of Rights only to the federal government, it did so explicitly (in the First and part of the Seventh Amendment) and had good reasons to do so:
"For it has to be remembered that...something very like religious establishments, and a certain degree of compulsion in religious matters, still survived in the New England states; and it is certain...that the religious provisions of the First Amendment were drawn as they were to meet the wishes of the New England men. As for the failure to blot out all governmental power, state as well as national, respecting the subjects of 'free speech,' 'free press' and 'free assembly', this is by no means difficult to understand if the fact is borne in mind that Shays' Rebellion in Massachusetts, and other similar disturbances...were not very far in the past...For the still fresh memory of these events probably produced a desire for some governmental control over the three methods of agitating that had underlain them...The tenor of the First Amendment, then, is easily understandable in the conditions of the time; but it is not possible to understand why the nationalist First Congress should have been unwilling to extend to the states, the guarantees of life, liberty, and property, in the other amendments, which they were ready to erect against their new government of the nation. And since they cast these other amendments in terms that included the states, the rational conclusion is that they intended the amendments to mean what the amendments said." (pp. 1060-1)
Is it conceivable that a Supreme Court in the first half of the nineteenth century would adopt this interpretation of the Bill of Rights? At first glance, the fact that as nationalist a Chief Justice as Marshall wrote the opinion in *Barron* and that as nationalist a Justice as Story concurred silently in it would seem to answer this question in the negative. But things are not so simple. Story himself once said "On ordinary occasions my habit is to submit in silence to the judgment of the court where I happen to entertain an opinion different from that of my brethren." *Cary v. Curtis*, 44 US 236 (1845) http://caselaw.findlaw.com/us-supreme-court/44/236.html As for Marshall, "According to the testimony of one of Marshall's colleagues, Justice Johnson, 'in some instances' the Chief Justice delivered the opinions of the Court 'even when contrary to his own Judgment and Vote.'" http://web.archive.org/web/20050908...ory.org/04_library/subs_volumes/04_c08_j.html Marshall and Story wanted the court to be as united as possible, and were aware that dissenting opinions on their part could actually weaken the nationalist cause by creating ill-will on the Court and leading their "states' rights" brethren to take more extreme stands than they would otherwise do. So it is at least conceivable that Marshall and Story really believed the Bill of Rights should be applicable to the states, and would have said so if they could have gotten enough of their colleagues to agree. (Perhaps this could have happened if a case like *Barron* had come up while for example Bushrod Washington, who died in 1829, was still on the Court.) Story does not make his views on the issue entirely clear in the relevant chapter of his *Commentaries on the Constitution* (http://www.constitution.org/js/js_344.htm); on varying interpretations of freedom of the press he writes, "Perhaps the apparent contrariety of these opinions may arise from mixing up, in the same disquisitions, a discussion of the right of the state governments, with that of the national government, to interfere in cases of this sort, which may stand upon very different foundations." But of course the First Amendment expressly refers to Congress, so a view that the powers of the state and federal governments may differ in this area is hardly conclusive for the rest of the Bill of Rights. On the Eighth Amendment, Story writes "It has been held in the state courts, (and the point does not seem ever to have arisen in the courts of the United States,) that this clause does not apply to punishments inflicted in a state court for a crime against such state; but that the prohibition is addressed solely to the national government, and operates, as a restriction upon its powers." In short, Story seems to be agnostic on this issue. He cites William Rawle (whom I will discuss below) approvingly on many points relative to the Bill of Rights, but never really deals with Rawle's arguments in favor of applying the Bill of Rights to the states.
In any event, there certainly was some support for the idea that the Bill of Rights applied to the states. Justice Johnson seems to have indicated so on two occasions: in a separate concurrence in *Houston v. Moore* 18 US (5 Wheat.) 1, 33-4 (1820) he wrote that the double jeopardy prohibition "is a restriction which operates equally upon both [state and federal] governments" http://press-pubs.uchicago.edu/founders/documents/a1_8_15s20.html; and writing for the Court in *Bank of Columbia v. Okely*, 17 US (4 Wheat.) 235, 240-42 (1819), http://press-pubs.uchicago.edu/founders/documents/amendVIIs17.html he seemed to suggest that the Seventh Amendment was applicable to the states.
Johnson's opinions have sometimes been regarded as ambiguous--Amar suggests that Johnson in *Houston* may have meant no more than that the double jeopardy clause applied whenever one of two prosecutions for the same crime was federal, even if the second was by a state. Yet Amar goes on to note that "That same year, however, the New York Supreme Court stated in dictum that the double jeopardy clause 'operates upon state courts' even where both prosecutions were for state law crimes."
http://web.archive.org/web/20100628141243/http://islandia.law.yale.edu/amar/lawreview/1992Bill.pdf
Furthermore, the applicability of most of the Bill of Rights to the states was defended at length in William Rawle's widely read treatise on the Constitution, originally published in 1824. The 1829 version is available online, and in Chapter 10 http://www.constitution.org/wr/rawle_10.htm Rawle argues explicitly that, for example, the Second Amendment was if anything meant *primarily* as a check on state power: "The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." Likewise he says of the Fourth Amendment's prohibition against unreasonable searches and seizures: "Here again we find the general terms which prohibit all violations of these personal rights, and of course extend both to the state and the United States."
Even after *Barron* was decided by a unanimous Court, there were those who thought it wrongly decided; see Amar's discussion (in the article I cited) of the "Barron contrarians."
So it does seem plausible that *Barron* could have been decided differently. If so, what would the consequences be? At first sight, this would seem to be a victory for human rights. But there is an altogether more sinister possibility. If slaves are property, and if the due process clause of the Fifth Amendment prohibits the federal government from outlawing slavery in any federal territory, as Taney held in *Dred Scott* (on the ground that this deprives slaveholders of their "property" without due process of law), then if the due process clause also applies to the states, it would seem that the *states* likewise lack the power to outlaw slavery. So Lincoln's feared "second Dred Scott decision", nationalizing slavery, would seem to be inevitable in such an event. Of course even in OTL, with *Barron* decided as it was, it was feared that the privileges and immunities clause of the original Constitution could be used to similar effect. But it seems to me that at most it would be used to guarantee the right of those *temporarily* traveling through or sojourning in a free state to keep their slaves there. This would be bad enough, since a "sojourn" could theoretically last for many years. But if the due process clause were applicable to the states, someone from a slave state could come to a free state, and even if he declared himself a *permanent* resident of the free state, his slave could not be taken away. Likewise a resident of the free state could travel to a slave state, buy a slave there, and take the slave back to the free state and keep him or her in slavery there. There would in fact *be* no more free states, at least in law. (As a practical matter, it is true, at some point the "Freeport Doctrine" would kick in; slaveholders would be unlikely to bring slaves to areas where slavery was unpopular, where there was not positive protection for it under local law, etc. Still, slavery would probably have a genuine if limited presence in at least some formerly free states.)
It is of course possible that precisely the realization of such a far-reaching and explosive effect would lead the Court to decide *Dred Scott* otherwise than it did (it might dodge the question of the constitutionality of the Missouri Compromise) but I wouldn't bet on it. And even if the court were to decide *Dred Scott* on a narrower basis than in OTL, another case would be likely to come up where the right of either the federal or state governments to prohibit slavery under the due process
clause would have to be decided.
It is also of course true that anti- as well as pro-slavery forces could use the due process clause, arguing (as some did in OTL) that slavery deprives people of liberty without *any* process of law and is therefore unconstitutional. But antebellum courts, dominated as they were by southerners and "doughfaces", would be very unlikely to accept this.
"[W]hat makes Barron's holding compelling is neither its technical parsing of Article I, nor its use of lawyerly rules of construction, nor even the narrow legislative history of the Bill of Rights in Congress. Rather, it is what Marshall near the end of his opinion called the 'universally understood' historical background of the Bill of Rights. [FN39]... [W]ithout the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. [FN42] Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words 'No State shall'-but even that modest proposal was too much for a Senate jealously guarding states' rights." http://web.archive.org/web/20100628141243/http://islandia.law.yale.edu/amar/lawreview/1992Bill.pdf
Nevertheless, *Barron v. Baltimore* IMO was not inevitable and has never lacked critics. First of all, it does not seem required by the literal language of the Bill of Rights. Except for the First Amendment ("*Congress* shall make no law...") and part of the Seventh Amendment ("any court of the United States") the first eight amendments do not refer explicitly to federal institutions, but simply refer in general terms to rights which must not be violated, without saying *who* might be doing the violation. One could well ask, "Why are unreasonable searches and seizures any more tolerable if done on behalf of the state rather than the federal government? Why should states, any more than the federal government, be allowed to take property for public use without just compensation?" In the twentieth century, the leading critic of *Barron*--largely on just this basis--has been William Crosskey in his ultra-Federalist interpretation of the Constitution, *Politics and the Constitution* (University of Chicago Press 1953).
Crosskey argues that when the First Congress wanted to apply the Bill of Rights only to the federal government, it did so explicitly (in the First and part of the Seventh Amendment) and had good reasons to do so:
"For it has to be remembered that...something very like religious establishments, and a certain degree of compulsion in religious matters, still survived in the New England states; and it is certain...that the religious provisions of the First Amendment were drawn as they were to meet the wishes of the New England men. As for the failure to blot out all governmental power, state as well as national, respecting the subjects of 'free speech,' 'free press' and 'free assembly', this is by no means difficult to understand if the fact is borne in mind that Shays' Rebellion in Massachusetts, and other similar disturbances...were not very far in the past...For the still fresh memory of these events probably produced a desire for some governmental control over the three methods of agitating that had underlain them...The tenor of the First Amendment, then, is easily understandable in the conditions of the time; but it is not possible to understand why the nationalist First Congress should have been unwilling to extend to the states, the guarantees of life, liberty, and property, in the other amendments, which they were ready to erect against their new government of the nation. And since they cast these other amendments in terms that included the states, the rational conclusion is that they intended the amendments to mean what the amendments said." (pp. 1060-1)
Is it conceivable that a Supreme Court in the first half of the nineteenth century would adopt this interpretation of the Bill of Rights? At first glance, the fact that as nationalist a Chief Justice as Marshall wrote the opinion in *Barron* and that as nationalist a Justice as Story concurred silently in it would seem to answer this question in the negative. But things are not so simple. Story himself once said "On ordinary occasions my habit is to submit in silence to the judgment of the court where I happen to entertain an opinion different from that of my brethren." *Cary v. Curtis*, 44 US 236 (1845) http://caselaw.findlaw.com/us-supreme-court/44/236.html As for Marshall, "According to the testimony of one of Marshall's colleagues, Justice Johnson, 'in some instances' the Chief Justice delivered the opinions of the Court 'even when contrary to his own Judgment and Vote.'" http://web.archive.org/web/20050908...ory.org/04_library/subs_volumes/04_c08_j.html Marshall and Story wanted the court to be as united as possible, and were aware that dissenting opinions on their part could actually weaken the nationalist cause by creating ill-will on the Court and leading their "states' rights" brethren to take more extreme stands than they would otherwise do. So it is at least conceivable that Marshall and Story really believed the Bill of Rights should be applicable to the states, and would have said so if they could have gotten enough of their colleagues to agree. (Perhaps this could have happened if a case like *Barron* had come up while for example Bushrod Washington, who died in 1829, was still on the Court.) Story does not make his views on the issue entirely clear in the relevant chapter of his *Commentaries on the Constitution* (http://www.constitution.org/js/js_344.htm); on varying interpretations of freedom of the press he writes, "Perhaps the apparent contrariety of these opinions may arise from mixing up, in the same disquisitions, a discussion of the right of the state governments, with that of the national government, to interfere in cases of this sort, which may stand upon very different foundations." But of course the First Amendment expressly refers to Congress, so a view that the powers of the state and federal governments may differ in this area is hardly conclusive for the rest of the Bill of Rights. On the Eighth Amendment, Story writes "It has been held in the state courts, (and the point does not seem ever to have arisen in the courts of the United States,) that this clause does not apply to punishments inflicted in a state court for a crime against such state; but that the prohibition is addressed solely to the national government, and operates, as a restriction upon its powers." In short, Story seems to be agnostic on this issue. He cites William Rawle (whom I will discuss below) approvingly on many points relative to the Bill of Rights, but never really deals with Rawle's arguments in favor of applying the Bill of Rights to the states.
In any event, there certainly was some support for the idea that the Bill of Rights applied to the states. Justice Johnson seems to have indicated so on two occasions: in a separate concurrence in *Houston v. Moore* 18 US (5 Wheat.) 1, 33-4 (1820) he wrote that the double jeopardy prohibition "is a restriction which operates equally upon both [state and federal] governments" http://press-pubs.uchicago.edu/founders/documents/a1_8_15s20.html; and writing for the Court in *Bank of Columbia v. Okely*, 17 US (4 Wheat.) 235, 240-42 (1819), http://press-pubs.uchicago.edu/founders/documents/amendVIIs17.html he seemed to suggest that the Seventh Amendment was applicable to the states.
Johnson's opinions have sometimes been regarded as ambiguous--Amar suggests that Johnson in *Houston* may have meant no more than that the double jeopardy clause applied whenever one of two prosecutions for the same crime was federal, even if the second was by a state. Yet Amar goes on to note that "That same year, however, the New York Supreme Court stated in dictum that the double jeopardy clause 'operates upon state courts' even where both prosecutions were for state law crimes."
http://web.archive.org/web/20100628141243/http://islandia.law.yale.edu/amar/lawreview/1992Bill.pdf
Furthermore, the applicability of most of the Bill of Rights to the states was defended at length in William Rawle's widely read treatise on the Constitution, originally published in 1824. The 1829 version is available online, and in Chapter 10 http://www.constitution.org/wr/rawle_10.htm Rawle argues explicitly that, for example, the Second Amendment was if anything meant *primarily* as a check on state power: "The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." Likewise he says of the Fourth Amendment's prohibition against unreasonable searches and seizures: "Here again we find the general terms which prohibit all violations of these personal rights, and of course extend both to the state and the United States."
Even after *Barron* was decided by a unanimous Court, there were those who thought it wrongly decided; see Amar's discussion (in the article I cited) of the "Barron contrarians."
So it does seem plausible that *Barron* could have been decided differently. If so, what would the consequences be? At first sight, this would seem to be a victory for human rights. But there is an altogether more sinister possibility. If slaves are property, and if the due process clause of the Fifth Amendment prohibits the federal government from outlawing slavery in any federal territory, as Taney held in *Dred Scott* (on the ground that this deprives slaveholders of their "property" without due process of law), then if the due process clause also applies to the states, it would seem that the *states* likewise lack the power to outlaw slavery. So Lincoln's feared "second Dred Scott decision", nationalizing slavery, would seem to be inevitable in such an event. Of course even in OTL, with *Barron* decided as it was, it was feared that the privileges and immunities clause of the original Constitution could be used to similar effect. But it seems to me that at most it would be used to guarantee the right of those *temporarily* traveling through or sojourning in a free state to keep their slaves there. This would be bad enough, since a "sojourn" could theoretically last for many years. But if the due process clause were applicable to the states, someone from a slave state could come to a free state, and even if he declared himself a *permanent* resident of the free state, his slave could not be taken away. Likewise a resident of the free state could travel to a slave state, buy a slave there, and take the slave back to the free state and keep him or her in slavery there. There would in fact *be* no more free states, at least in law. (As a practical matter, it is true, at some point the "Freeport Doctrine" would kick in; slaveholders would be unlikely to bring slaves to areas where slavery was unpopular, where there was not positive protection for it under local law, etc. Still, slavery would probably have a genuine if limited presence in at least some formerly free states.)
It is of course possible that precisely the realization of such a far-reaching and explosive effect would lead the Court to decide *Dred Scott* otherwise than it did (it might dodge the question of the constitutionality of the Missouri Compromise) but I wouldn't bet on it. And even if the court were to decide *Dred Scott* on a narrower basis than in OTL, another case would be likely to come up where the right of either the federal or state governments to prohibit slavery under the due process
clause would have to be decided.
It is also of course true that anti- as well as pro-slavery forces could use the due process clause, arguing (as some did in OTL) that slavery deprives people of liberty without *any* process of law and is therefore unconstitutional. But antebellum courts, dominated as they were by southerners and "doughfaces", would be very unlikely to accept this.