Jason Mazzone, The Bill of Rights in the Early State Courts, 92 Minn. L. Rev. 1 (2007). Here's the gist:
The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.
A very interesting piece! Also notable is that at the trial court level in Barron, the Maryland court held that the state constitution's due process clause required just compensation for government takings of private property, an invocation of the concept of "substantive due process" well before its purported invention in Dred Scott v. Sandford.
I like that you point out that the concept of "substantive due process" was around long before its invocation in the Dred Scott case. A similar notion of "substantive due process," as used by the trial court in Barron, was also invoked by Chancellor James Kent in the famous 1816 takings case: Gardner v. Newburgh, 2 Johns. Ch. 162 (N.Y. Ch. 1816).
This case arose from the interruption to a riparian owner's water flow by water facilities created upstream by city officials in the Village of Newburgh. Chancellor Kent first established that the riparian owner had a legally cognizable property right that was deserving of due process protection under New York's constitution:
"[A riparian right] is a part of the freehold, of which no man can be disseised 'but by lawful judgment of his peers, or by due process of law.' This is an ancient and fundamental maxim of common right to be found in Magna Charta, and which the legislature has incorporated into an act declaratory of the rights of the citizens of this state. (Laws, sess. 10. ch. 1.)"
Chancellor Kent then concluded that natural law philosophers, such as Hugo Grotius and Samuel Pufendorf, among others, established that it was "a clear principle of natural equity" that the government pay just compensation following a taking of private property. Kent further pointed out that this "clear principle" (i.e., substantive due process) had been "adopted by all temperate and civilized governments, from a deep and universal sense of its justice."
This is just another prominent example of what you rightly point out: substantive due process was a legal concept with some currency in the antebellum era under both the federal and state constitutions.
Adam
I wonder what their theory was for concluding that the Bill of Rights operated as a restriction on the State (as opposed to the Federal) government? If the theory was something that still holds water today, that would certainly count as a significant and useful discovery.
Sounds not entirely unlike the modern practice of referring to principles of international law when interpreting the Constitution and laws of the United States, particularly since the view of the States as coequal sovereigns was not as much of a legal fiction in the early 19th century as it is today. I wonder if a similar controvery regarding the propriety of applying to "foreign" legal principles to State jurisprudence existed at the time.
This is an application of Procedural Due Process. The judge is saying that the land owner had a property right to the use of the water that had traditionally flowed across his land and the government did not follow the correct legal procedure for taking away that right.
"The plaintiff's right to the use of the water, is as valid in law, and as useful to him, as the rights of others who are indemnified or protected by the statute"
"(T)he statute does not deprive the plaintiff of the use of the stream, until recompense be made. He would be entitled to his action at law for the interruption of his right, and all his remedies at law, and in this Court, remain equally in force. But I am not to be understood as denying a competent power in the legislature to take private property for necessary or useful public purposes; and, perhaps, even for the purposes specified in the act on which this case arises. But to render the exercise of the power valid, a fair compensation must, in all cases, be previously made to the individuals affected, under some equitable assessment to be provided by law. This is a necessary qualification accompanying the exercise of legislative power, in taking private property for public uses; the limitation is admitted by the soundest authorities, and is adopted by all temperate and civilized governments, from a deep and universal sense of its justice."
The "clear principle" he is referring to is the one clearly stated in the Takings Clause. I cannot fathom how you would twist this ruling to claim that the Chancellor is referring to Substantive Due Process. The court which heard this case was a chancery (equity) court and not a court of law. Which means it was empowered to make cases and decisions on the basis of fairness rather than merely the law. The US Supreme Court not only doesn't have the authority to do that, it is confined to federal statutes and cannot avail itself of the common law for its decisions.
"Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law."
Ex parte Bollman, 8 U.S. 75, 93-94 (1807) (Marshall, C.J.).
Someone recently claimed to me that the Supreme Court's job was to protect rights and thus was empowered to overturn any law that it felt did so. I tried to point out that the courts can only enforce those rights which Congress has seen fit to pass (since our "rights" are merely limitations on the powers of Congress and the states). Substantive Due Process is a way to get around that by claiming that through the Due Process Clause Congress has passed more rights than they actually had.
The people cculd, if they wished, enact such an approach and give the Supreme Court a general power to overturn laws contrary to equity as the Justices understand it rather than merely those contrary to a written constitution.
They have not, however, done so.
---John Marshall, at Convention, June 20, 1788
How does this assertion reconcile with article III, section two of the US constitution, that says "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made....."?
Your critique of my comment would make sense if the New York constitution had a takings clause at the time that Gardner v. Newburgh was decided, but it did not. Thus, Gardner is certainly not a takings clause decision, because there was no constitutional requirement in New York in 1816 that public authorities had to pay for takings or damages of property!
Accordingly, the only way for Kent to decide in favor of the riparian owner was to deem the interference with his riparian rights to be an arbitrary deprivation of property, i.e., a due process violation. This was the constitutional hook for Kent. However, there was no *procedural* violation in this case; the riparian owner was not claiming that he didn't get a hearing or was denied the right to sue. The riparian owner was making a substantive claim: a violation of his property rights. As a result, Kent used a substantive notion of due process to create a compensation requirement for what we would now identify as a "regulatory taking."
This is a fairly well-known interpretation of Gardner v. Newburgh, and a quick review of the discussions of Gardner in the relevant academic literature will confirm this.
Adam