In 1830, at the urging of President Andrew Jackson, the U. S. Congress passed the Indian Removal Act which authorized the President to grant the Indians unsettled land west of the Mississippi river in exchange for Indian land within existing state borders. The U. S Supreme Court under Chief Justice John Marshall first addressed the Indian lands question in an 1831 case Cherokee Nation v. Georgia. That case developed out of Georgia’s attempt to assert its jurisdiction over Cherokee land within the state of Georgia that was protected by federal treaty. The Supreme Court in that case ruled that it had no jurisdiction to hear the Cherokee request to prevent Georgia’s attempt. Marshall and the Court determined that the Cherokees were “a domestic, dependent nation (a ward of the United States), rather than “a sovereign nation.” By refusing to hear the case, the Court left the Cherokees at the mercy of the land-hungry state of Georgia. The Georgia legislature meanwhile passed a law requiring anyone other than Cherokees who lived on Indian territory to obtain a license from the state. Samuel Worcester and some other non-Cherokee missionaries settled and established a mission on Cherokee land at the request of the Cherokees but without a license from the state. The state then charged them with violation of the Georgia law. They were tried, convicted, and sentenced to four years of hard labor. Worcester and the other missionaries then appealed to the U. S. Supreme Court.

Speaking through Chief Justice John Marshall in Worcester v. Georgia, the Supreme Court ruled in favor of Worcester and the Cherokees. Marshall wrote that citizens of Georgia had no right to enter Cherokee land “but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.” Therefore, Marshall concluded, “the acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States.”

The Indians thus achieved a significant legal victory. However, this significant legal victory became an unfortunate chapter in American history. When President Andrew Jackson heard of the Supreme Court’s decision, he supposedly remarked, “John Marshall has made his decision, now let him enforce it.” In one of the dark pages in American history, the Indians were compelled to leave their native land and move west to Oklahoma Territory. In what is referred to as “the Trail of Tears,” many did not survive the move. 

In the process of making improvements to the city’s streets, the city of Baltimore essentially destroyed access by large ships to a deep-water wharf owned by Barron. Barron believed his private property had thus been “taken for a public purpose” and that, as a result, he was entitled to just compensation under the Constitution’s Fifth Amendment which provides that “nor shall private property be taken for public use without just compensation.” Barron won in a lower state court, but the decision was reversed by the Maryland Supreme Court. Barron then appealed to the U. S. Supreme Court. Speaking through Chief Justice John Marshall, the Supreme Court ruled that it lacked jurisdiction because the Fifth Amendment’s “takings clause” did not apply to state governments. Marshall explained that because the Bill of Rights only applied to the national government “[T]he provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.”

In the late 1890s the Supreme Court overturned its decision in Barron v Baltimore and ruled that the Fifth Amendment’s “takings clause” does apply to the states. Decades later, a majority of the Supreme Court in a series of cases used the due process of law clause of the Fourteenth Amendment and a doctrine called “incorporation” to hold that most of the specific rights of the Bill of Rights are now also limitations on the states.

In 1785, to provide the public better access from Charlestown to Boston the state legislature of Massachusetts granted the Charles River Bridge company the right to operate a ferry and then a toll bridge across the Charles River from Charlestown to Boston for 70 years. In 1828, before the 70 years had elapsed, the state legislature authorized merchants in Charlestown to build another bridge known as the Warren Bridge virtually next to the Charles River bridge. The merchants were authorized to collect tolls on the Warren Bridge until they had been reimbursed at which time Warren Bridge would become a free bridge and revert to state ownership. With Daniel Webster as its attorney, the Charles River Bridge company sued the state citing the clause of Article I, Section 10 of the Constitution which forbids states to impair the obligation of contracts. Speaking through Chief Justice Roger Taney, a majority of the Supreme Court invoked the so-called “four corners” doctrine which holds that a court must interpret only what is actually written in a contract, not what might be implied from it. Massachusetts had not granted the Charles River Bridge company an exclusive right to operate a toll bridge across the river. A ruling in favor of the Charles River Bridge company would infringe upon a state’s right to build its own roads, bridges, canals and other forms of transportation to the detriment of the public good. Taney asserted that while “the rights of private property must be sacredly guarded,” at the same time “the object and end of all government is to promote the happiness and prosperity of the community …; and it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created.”