Published by EH.Net (November 2017)

William Davenport Mercer, Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty. Norman, OK: University of Oklahoma Press, 2017. xi + 283 pp. $35 (cloth), ISBN: 978-0-8061-5602-6.

Reviewed for EH.Net by Stephen B. Presser, Pritzker School of Law, Northwestern University.

We know Barron v. Baltimore (1833) as the famous case in which the great Chief Justice John Marshall declared that the Bill of Rights (the first ten amendments to the Constitution of the United States) restricted only the federal government, and not state and local governments. This extraordinary little book brilliantly sets Marshall’s holding in context and thereby offers a valuable and enlightening tour of jurisprudence in the antebellum era. Remarkably, its author, William Davenport Mercer, is able to inform us not only about what happened in the tumultuous period in which Barron was decided, but he is able, through his almost incredible grounding in the scholarship of legal history and constitutional law, to give us some needed perspective on contemporary constitutional and political debates.

Mercer’s main contention — which, after this book, simply can no longer be denied — is that the prevailing American conception of basic rights, those, that is, that protected person and property, were, in the early years of our republic not thought to be created by public enactments such as the Constitution and the Bill of Rights, or even by pacts secured from monarchs, such as the Magna Carta, but were, instead, as John Locke and the Declaration of Independence maintained, our possessions because granted by a benevolent Creator. Put slightly differently, as it was in the almost countless examples of early republican case law that Mercer gives us, our rights were reflected in our state and federal constitutions and bills of rights, but the source of those rights was actually what we might call “Supra-Constitutional,” to wit, our English Common Law heritage, natural law and natural rights, as expressed by the great civilian authors (Hugo Grotius, Emer de Vattel, and Samuel von Pufendorf among them), and a body of jurisprudence that emerged in England and America, including the writings of William Blackstone, James Kent, and Joseph Story.

Beginning at about the time of Barron, however, this older view receded, though it lingered in some locations almost right to the time of the New Deal. Mercer shows, convincingly, that in Marshall’s case at least, the articulation of this newer view was a way of avoiding plunging the Supreme Court into the political maelstrom swirling around the Nullification Crisis and the slavery issue. Mercer shows a Marshall with which we are already familiar, the great Chief Justice committed to preserving the prestige of the judicial as a co-equal branch of government, but his Marshall emerges as a deft, if, perhaps, not completely principled, politician. To be fair, of course, this is the same Marshall, who as early as 1803, in Marbury v. Madison, steered his Court away from a confrontation with his cousin Thomas Jefferson, but still claimed the power of judicial review.

In a tour de force, Mercer compares Marshall with John Roberts, whose finessing the issue of the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) in the notorious decision in NFIB v. Sibelius (2012) kept his Court from a confrontation with the then ascendant Democrats in Congress and the Obama administration. Mercer’s legal realism is bracing, and is, to a certain extent, similar to the claims of the notably provocative recent legal academic school of Critical Legal Studies, which flatly suggests, in a Thrasymachian manner, that all law is politics.

Lest the reader fear that an overweening cynicism is the only appropriate attitude toward constitutional and legal developments in the country, however, Mercer draws from the recent scholarship on what is known as “Popular Constitutionalism,” to suggest that the American people themselves ought to understand that they, ultimately, are not only the consumers, but the makers of constitutional law. Mercer is not completely explicit on this point, but I read him as suggesting that a realization of our earlier natural law and natural right heritage could eventually bring us toward an expanded notion of individual rights which might avoid the debilitating strictures now found in constitutional doctrines.

Just as one could be skeptical of Critical Legal Studies, and Popular Constitutionalism, one might hesitate before embracing what might be something of an unbounded opportunity to create what would, actually, be rather new instead of traditional rights, but this does not detract from the powerful, sophisticated, and thorough monographic study of Barron v. Baltimore. This work is a model of what a talented scholar can do taking just one case, and a famous one at that, and revealing an almost forgotten panorama of jurisprudence. This work ought to be of interest not only to constitutional historians, but also for anyone seeking to understand not only antebellum politics and culture, but also the subtle, surprising, and enduring manner in which Justices, for better or worse, mold the law.


Stephen B. Presser, is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law and the author of Law Professors: Three Centuries of Shaping American Law (West Academic Publishing: 2017).

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