Main currents in American thought

The name of Webster has been so closely associated with the movement of constitutional nationalism as to overshadow the just fame of one who has many claims to be regarded as the intellectual leader of the school. Joseph Story was a Salem lawyer whose reputation, considerable as it is, is scarcely commensurate with his influence on our later constitutional development. Of the same Harvard class with William Ellery Channing, he dabbled in polite letters as a young man, but went into the law, entered politics, became Associate Justice of the Supreme Court, and for a time was Dane professor of law at Harvard. He came of radical stock. His father, a physician at Boston till he removed to Marblehead, was a militant Revolutionary Whig, one of the score or so of Indians who made up the Boston Tea Party, and a leader amongst the group of Sons of Liberty who seized and gagged the sentinels and carried off two brass fieldpieces from the Common where the British commander had posted them to overawe the town. The son grew up an ardent republican. As a very young man he became an outstanding leader of the unfashionable party, then in the minority, and suffered certain humiliations on account of his political opinions; on one occasion, according to Theodore Parker, being “knocked down in the street, beaten, and forced to take shelter in the house of a friend, whither he fled, bleeding, and covered with the mud of the street” (Additional Speeches, Vol. I, p. 178). Of these youthful heresies few indications appeared in his later life.

Republican though he might be, he was utterly devoid of any radical tendencies, and when he took his seat on the Supreme Court bench he was speedily drawn into the powerful orbit of John Marshall, shared the latter’s views on all major constitutional questions, and turned Whig. He became a close friend of Webster and from 1816 to 1842 he was his chief adviser on knotty legal, constitutional, and international questions. “From that deep and copious well of legal knowledge,” Parker asserts, Webster drew freely “whenever his own bucket was dry” (ibid., p. 170).

This shift from Republican to Whig came about quite naturally. New England liberalism, it must be remembered, produced no intellectual leaders till late, and no clear-cut political philosophy. Though it nominally accepted the leadership of Jefferson it never was won over to the Physiocratic economics or states-rights principles of the Virginia school. Story was at no time a Jeffersonian, but rather an eager and avowed disciple of Washington, “little infected with Virginia notions, as to men or measures.” In his Autobiography he wrote:

That he had as little sympathy with the Physiocratic economics of Jefferson is apparent from his early activities in furthering the new paper system. While a member of the Massachusetts legislature, as a young man, he was active in pressing for bank franchises, and upon the establishment of the Merchants’ Bank of Salem he became its president. Like Washington and Marshall he espoused the new gospel of capitalism, with none of the agrarian prejudices of the landed gentry to hold him back. He was the political twin of the great Chief Justice, and a Whig in spirit long before Webster. “I seem to myself,” he remarked late in life, “simply to have stood still in my political belief, while parties revolved about me; so that, although of the same opinions now as ever, I find my name changed from Democrat to Whig, but I know not how or why” (ibid., Vol. I, p. 546). Though somewhat naïve the comment is just. Anti-federalism in Massachusetts would seem to have been largely a capitalistic protest against the narrow tie-wig Federalism; and while Joseph Story sat upon the Supreme Court bench, adapting legal principles to the new needs of business, the country was moving forward to the middle-class philosophy that he had early come to hold.

In the year 1833 he published his Commentaries on the Constitution, the fruit of long labors, which was at once accepted throughout the North as a classical authority, and which has held its ground pretty well since. In method and temper, as well as objective, the exposition of Story stands in sharp contrast to that of the southern school. In its particularism the latter appealed to the history of the Constitution in the making, and to French romantic philosophy; whereas the former followed English constitutional theories to nationalistic ends. Story was steeped in the Common Law and his thinking reveals the strong influence of Blackstone. In passing through the mind of the great Tory commentator, English constitutional theory had received a pronounced Tory bias, and something of this remains after filtering through the mind of Story. The ideal of a strong and efficient political state, with its corollaries of a coercive sovereignty, of the duties of a subject rather than the rights of a citizen, of loyalty to government rather than concern for political justice, derives immediately from English theory and practice. Much likewise he took from the older Federalists: their fear of an encroaching legislative power; their concern at faction; their faith in checks and balances to restrain the majority will. But his chief inspiration came from the spirit of the Common Law—that subtle influence that Jefferson so greatly feared. His legalism was inveterate; the final, authoritative answer to all questions he discovered in the decision of the courts.

Against such a mind, deeply read in the law and with scanty knowledge of economics and political theory, the waves of liberal and romantic thought broke impotently. His reasoning may be convincing to a lawyer, but to the historian his exposition is often weak, his data inadequate, and his conclusions not infrequently contrary to fact.

In building his argument Story drew his materials freely from The Federalist, from the writings and decisions of Marshall, and from Blackstone. The backbone of the work is Hamilton and Marshall, from whom he quotes constantly, supplemented by a host of decisions by Federalist judges. With its pronounced bias The Commentaries must be regarded as a partisan document, which like The Federalist has grown in authoritativeness with the triumph of its party principles. Its surprising weakness on the historical side has come to be overlooked since the downfall of southern particularism, but during the debates that preceded the Civil War the work was sharply handled by southern historians, and in his Constitutional View of the War between the States Stephens quite demolished Story’s feeble attempt at an historical justification of the anti-compact theory. The weight of historical evidence, to present-day students, would seem to be on the side of the states-rights argument, although in certain aspects both sides were innovators: Story in overleaping the period of French ascendency when the Constitution took shape, and going back to the older English tradition; and the compact school in reasserting the compact theory at a time when the spirit of nationalism was undermining it. Story seems to have been conscious of his weakness, for he expressly repudiates the method of interpreting the work in the light of contemporary testimony at the time of its formulation.

In so doing he not only violates the principle that a document is to be construed in the light of the common understanding when it was drawn; but with naïve inconsistency, he constantly appeals to The Federalist, pretty much ignoring the opposition pamphlets, and interprets the Constitution in accord with its commentary. But for the most part he clings to the strict letter of the document. He lightly brushes aside the whole compact argument by asserting dogmatically that the phrase, “We the people of the United States,” must be understood in its simple literal sense, and that thus interpreted, the Constitution is seen to derive immediately from the individual citizens acting in their sovereign capacity without the intermediation of the state governments. The dispute long waged furiously about this point and Story’s analysis touches only the fringe of the argument.

Very likely it is presumptuous for one who is not a lawyer to express an opinion, yet these celebrated Commentaries seem today very little more than a new-modeled Federalism, adapted to changing conditions. Underneath the somewhat crabbed and narrow legalism is a common-sense realistic political philosophy, an embodiment of English constitutional tradition as it grew up under a Tory régime, that reveals scant sympathy with French romantic theories. The work is an unconscious testimony to the tenacious hold of the English Common Law on the legal mind of America, as well as to the rising spirit of nationalism. It did much to strengthen both. It was a triumph of the lawyer over the historian and political philosopher, and it marks the beginning of the lawyer’s custodianship of the fundamental law. In spite of its somewhat petty legalism and prosaic common sense, a note of veneration for the great document runs through the tedious pages, constituting the work at once both a commentary and a eulogy.