Joseph Story: A Man For All Seasons

Ronald D. Rotunda and John E. Nowak

As we celebrate the bicentennial of our Bill of Rights--ratified by the States from the period from November 20, 1789 (New Jersey) through 1790, and completed by December 15, 1791 (Virginia)--it is appropriate also to celebrate Joseph Story, the Justice who wrote the opinions that first gave meaning to our unique federal system of government, a structure that protects the rights we cherish today.

Joseph Story lived at an ideal time and under ideal circumstances to reflect upon the nature of our constitutional system of government. Story's life spanned the period from 1779 to 1845. He spent 34 of his 66 years as a Justice of the United States Supreme Court. During most of that time he was also professor of law at Harvard University, and his accomplishments as a teacher and scholar were key elements in establishing the Harvard Law School's initial success and enduring reputation. Story is, in a very real sense, father to all American legal education, for his efforts demonstrated that professional academic training for lawyers was possible and desirable. What he created at Harvard became the model for all subsequent American law schools.

Joseph Story was also the intellectual grandfather of early American political theory. He provided scholars of the early nineteenth century, such as Francis Lieber and Simon Greenleaf, an understanding of our constitutional system of government. Alexis de Tocqueville relied heavily on Story's works when he wrote his renowned book, Democracy in America, analyzing the young American Republic and its workings in the early nineteenth century.

Joseph Story was born three years after the Declaration of Independence, but he must have felt as if he had lived through it all. His father, Elisha Story, was active in the War of Independence and, in fact, was one of the "Indians" at the Boston Tea Party. [1] Story became a close associate of men who had been both the intellectual and political leaders of the revolution. The Constitution was drafted when he was only eight years old; the first ten amendments to the Constitution, which form the Bill of Rights, were ratified only twenty years before Story took his oath of office as a Supreme Court Justice. For all practical purposes, he was present at the creation of our constitutional system of government.

Elisha Story's first wife, who gave her husband seven children, died two years before Joseph was born. Elisha remarried and Joseph was the eldest of eleven more children. Yet Story never got lost in the crowd. His mother told him: "Now Joe, I've sat up and tended you many a night when you were a child, and don't you dare not to be a great man."[2]

In January 1795, Story entered Harvard College where, in his own words, he "studied most intensely" and "reaped the fair rewards in collegiate honors."[3] He loved the college life, but he studied too much. Story's son later explained that in the dead of night young Joseph "would go down to the college yard, and pump cold water on his face and head in order to revive himself, and then would return with renewed energy to his studies." He entered college "robust and muscular," but left "pale and feeble."[4]

He was graduated in 1798, and began to read law at Marblehead, Massachusetts, in the offices of Samuel Sewall. A formal legal education would have been most unusual in Story's day. Less than a year later Sewall became a Justice of the Massachusetts Supreme Judicial Court, so Story moved to Salem and studied in the law offices of Samuel Putnam, who later also became a Justice of the Massachusetts Supreme Judicial Court. In July of 1801 Story was admitted to the bar and opened his own office in Essex.

In 1805 the town of Salem chose Story to be its representative in the Massachusetts legislature, where he served for three terms. Three years later he was elected without opposition to the U.S. House of Representatives. He served only one term in Congress but declined reelection because of his "disgust" at political chicanery, "domestic consideration," and his desire "to devote myself with singleness of heart to the study of the law."[5]

Story returned to his state, was reelected to the state legislature, and, in 1811, was elected speaker of the House. Later in 1811, President Madison appointed Joseph Story, then age 32, to the United States Supreme Court.

Story was Madison's third choice, after Levi Lincoln and John Quincy Adams had declined the position. Story accepted the appointment to the Supreme Court although by so doing he took approximately a 50 percent cut in salary, to $3,500 a year. In a letter of November 30, 1811, Story explained why he had accepted:

Story promptly resigned his legislative seat.

Why did Madison choose Story? Madison was a Democratic-Republican. His mentor, Thomas Jefferson, had defeated the last Federalist to hold the Presidency, John Adams. Joseph Story, like his father before him, and like President Madison, was a Democratic-Republican. Story's son said that his father "was an ardent republican, and believed in the policy of Mr. Jefferson."[7] Although Story was a successful politician, in Massachusetts his politics put him in a distinct minority status. As Story acknowledged: "At the time of my admission to the bar, I was the only lawyer within its pale, who was either openly or secretly a democrat. Essex was at that time almost exclusively federal, and party politics were inexpressibly violent."[8]

That Story and Madison were of the same party may have been a necessary condition for an appointment, but it was, by itself, not a sufficient condition. Perhaps it may have been that President Madison expected that Joseph Story, as a Justice of the Supreme Court, would vote to restrict the power of the federal government over the states and to increase state autonomy in economic matters. President Madison may even have thought that the strong-willed Story, a successful lawyer, politician, and legal scholar, would serve as an intellectual counterweight to the views of federalist Supreme Court Justices such as Chief Justice John Marshall. If Madison held those beliefs, his appointment of Story illustrates the truth to the commonly made statement that Presidents are poor predictors of the legal positions and judicial philosophies of persons whom they nominate to be members of the Supreme Court.[9]

Some people have concluded that Story fell under Marshall's spell, but that view sells Story short. While Story was a believer in many of the theories put forth by Jefferson, he also believed that the best hope for the country to flourish as a nation and as a place where republican principles could thrive was an effective central government. Story also believed that there were legal, rather than merely political, restrictions on the powers of both the states and federal government to interfere with the inherent freedoms of men and women. He saw these freedoms protected by a type of natural law embodied in the Constitution. These included freedom to contract for, and engage in, a variety of economic activities.

During his years on the Court, Story would be as controversial a figure as Chief Justice John Marshall. Justice Story wrote the Supreme Court's opinion in Martin v. Hunter's Lessee[10] holding that the Supreme Court of the United States could reverse the rulings of state courts in order to insure a uniform interpretation of federal law throughout the United States and to insure the supremacy of federal law over conflicting actions of state and local governments. He consistently voted for court rulings that found that state regulations of commerce violated limitations on state power established by the granting of power to the federal government to regulate commerce; he dissented when the Court, in his later years, upheld state regulations of commerce that he believed would interfere with the growth of the nation as a single economic unit.

Story understood that federal courts would be crucial to the enforcement of federal law. Indeed, Story suggested in his scholarly writings and in case dictum that Congress had a constitutional duty to extend the jurisdiction of lower federal courts in a way that would guarantee protection of the supremacy of the federal law.[11] Whenever possible, Story would vote to extend the jurisdiction of federal courts. As one commentator wrote at the turn of the century, after reviewing Story's positions on the jurisdiction of the federal government to control admiralty matters, and the jurisdiction of federal courts to rule on such matters: "It was said of the late Justice Story, that if a bucket of water were brought into his court with a corncob floating in it, he would at once extend the admiralty jurisdiction of the United States over it."[12]

In perhaps the most controversial opinion that Joseph Story wrote during his years as Justice, he ruled in Prigg v. Pennsylvania[13] that state courts and state governments had no authority to interfere in the enforcement of the Fugitive Slave Act of 1793 passed by the federal government. Although Justice Story's opinion for the Court in Prigg created some procedural difficulties for slave owners seeking to recapture fugitive slaves, it represented in its own time a victory for slaveholders. Justice Story's opinion found that the states retained the power to legislate regarding fugitive slaves so long as the state laws did not interfere with or obstruct "the just rights of the owner to reclaim his slave, derived from the Constitution of the United States."[14]

Story had a long, public history of opposition to slavery, but--because of his understanding of the slavery compromise reached as a basis for the Constitution of 1787[15] --Story could not bring himself to disregard the rendition clause of the Constitution, which provided the basis for the pro-slavery ruling in Prigg.[16] Story viewed his analysis of the Constitution, and all other branches of law, as a science; he believed that he could explain the meaning of the Constitution in the same manner as a detached scientist would explain the meaning of scientific principles. He understood the original intent behind the rendition clause and its purpose in the governing structure of the new Republic. Indeed, in a speech to students at Harvard he later stated that those who wished that he and other Justices disregard the rendition clause of the Constitution were espousing a position that he believed in the long run would be to the detriment of constitutional government in America because the position was grounded on a belief that one could disregard part of the Constitution for political or other nonlegal reasons. Story's opinion in Prigg. as well as his other judicial opinions and scholarly writings, show Joseph Story to have been a man of independent mind who would analyze the history and purposes of constitutional provisions and give his opinion regarding their meanings, regardless of the popularity or unpopularity of his opinion or decision.

One reason that Story's views of the Constitution remain important to us today is that he cannot be easily categorized as merely a Democratic-Republican believer in state autonomy or a Federalist champion of federal power at the expense of state autonomy and individual liberties. He wrote opinions that were both praised and attacked by persons whom we would today consider political liberals or conservatives. A tribute to his lasting influence is that many of those opinions continue to be cited today, while much more recent opinions by less influential Justices have been assigned to constitutional dustbins.

Story was not only a controversial Justice; he was an influential professor of law who made Harvard Law School a success. Harvard Law School is said to have been founded in 1817, but for over a decade it did not amount to much. Then Nathan Dane endowed a new professorship of law, and Harvard University, determined to make something of its new law school, sought to persuade Story to take the position. At first he refused. Story had already given much of his time to Harvard: he had become a Harvard Overseer in 1819, and a Fellow of the Harvard Corporation in 1825. However, with repeated entreaties it became hard to say no. After Dane himself approached Story at least twice, the young Justice finally accepted.

Story bargained carefully. As a respected jurist, he was able to "write his own ticket at the University."[17] It was agreed that Story would receive at least $1,000 a year from the Harvard Corporation, plus income from the Dane professorship, plus a house in Cambridge. He would not be a resident professor, but he would be willing to visit the law school, "examine the students occasionally, and to direct their studies, and to lecture to them orally on the topics connected with the Dane Professorship from time to time in a familiar way."[18] And he would write, and write.

His scholarly output was amazing. Story was inaugurated Dane Professor on August 25, 1829, and almost immediately began work on his Commentaries on the Constitution, while continuing to remain an Associate Justice. By late 1832 the three volumes were at press. Also that year he published his Commentaries on the Law of Bailments. His other Commentaries were published in rapid succession: in 1834 he published Commentaries on the Conflict of Laws' that same year he published a short book called Constitutional Class Book: being a brief exposition of the Constitution of the United States. designed for the "higher classes in the common school." In 1840 he published another slim volume, A Familiar Exposition of the Constitution of the United States: containing a Brief Commentary on Every Clause Explaining the True Nature. Reasons, and Objects Thereof: Designed for the Use of School Libraries and General Readers. (Long titles were common in those days.)

In 1835, in Edinburgh, he published A Discourse on the Past History. Present State. and Future Prospects of the Law. In 1836 he published his Commentaries on Equity Jurisprudence. As Administered in England and America. In 1838 came Commentaries on Equity Pleadings. and the Incidents Thereof. According to the Practice of the Courts of Equity of England and America. A year later saw: Commentaries on the Law of Agency as a Branch of Commercial and Maritime Jurisprudence. with Occasional Illustrations from the Civil and Foreign Law. And so on. He did all this writing in an era long before the advent of word processors, before photocopy machines, before Dictaphones, before even typewriters. His last commentary, Commentaries on the Laws of Promissory Notes and Guarantees of Notes. and Checks on Banks and Bankers: with Occasional Illustrations from the Commercial Law of the Nations of Europe was published in 1845, the year he died. At the time of his death, he had grand plans for more writings, for Commentaries on Admiralty and for Commentaries on the Law of Nations, and for a book of his reminiscences.

Story had a lot of thoughts that he wanted to publish, and his readership agreed. By the time he turned 65, on September 18, 1844, he was earning $10,000 a year from his book royalties. At this point his salary as Associate Justice was $4,500. Royalties had far outstripped his salary.

When we talk about writing, we should consider not just quantity but also quality. Story's writings show careful analysis and a depth of research. Story's son wrote that Joseph Story was:

The breadth of Story's citations in his various Commentaries on widely different subjects reflects the fact that he was very knowledgeable about not only the common law tradition but also civil and Roman law. His various Commentaries routinely cite Brisson, Cujas, Domat, Duranton, Duvergier, Erskine, Halifax, Heinneccius, Huber, Livermore, Pardessus, Pothier, Puffendorf, Stair, Vinnius, Voet, The Code Civile of France, the Code of 1825 of Louisiana, the Digest and Institutes of Justinian, and the Corpus Juris Civilis. And Story did not only cite this wide range of sources; he checked them.

Of all his Commentaries, Story may best be remembered for his Commentaries on the Constitution. Rave book reviews greeted this influential book when it was published in early 1833: The reviewers praised the Commentaries on the Constitution as a tremendous intellectual achievement, an "important and instructive work," and also recognized it as a vital force advocating nationalism and supplying the theoretical framework to attack the theories of state rights, reserved powers, and dual sovereignty forcefully advanced by Calhoun and others.

The American Monthly Review, for example, compared Story's new book on the Constitution to Blackstone's Commentaries on the Laws of England. The comparison was significant, for Blackstone's Commentaries had "revolutionized the study of law in America. Lawyers in Story's time cited Blackstone in American courts as today they would cite opinions in their state's highest court. Blackstone had the authority of precedent. James Iredell represented a typical reaction to Blackstone. Iredell, who would later become a Justice of the U.S. Supreme Court, wrote his father in 1771 to

Blackstone, said Iredell, made the common law not merely "a profession, but as a science."[25] Sir Edmund Burke noted in 1775 that almost as many copies of Blackstone's Commentaries were sold in the colonies as were sold in England. To compare Story's writings to Black-stone's was high praise indeed.

The American Monthly Review went on to praise Story, the successor to Blackstone, as supplying the ammunition to attack the states' rights advocates. "If there was ever a time," the American Review wrote,

It commended:

Justice Story, in his Commentaries, metaphorically rolled up his sleeves and went to bat for the cause of an effective national government led by an effective Chief Executive.

Edward Everett, the famous politician and statesman, noted that, because of the turbulence of the times, Story's study of American constitutional law had more than a theoretical significance; it had "an element of real life."[28] Everett realized that Story's study was not only intellectually interesting but was politically in the center of the storm. Everett summarized Story's history of the colonies and the Confederation prior to the Constitution and rhapsodized:

Finally Everett concluded:

The prestigious periodical, American Jurist--a publication to which the prolific Story was a frequent contributor--echoed Everett. The magazine praised the "patriotic national tone of feeling [that] runs through the work" And The American Quarterly Review used the appearance of the Commentaries as an occasion to present arguments supporting the Federalists, attacking the Anti-federalists, and limiting the doctrine of reserved rights.[33]

Story, in an effort to spread his message, published, just a few months after the publication of his Commentaries on the Constitution, a one-volume Abridgment. Story designed his one-volume work as a textbook for use in law school and in college. The Abridgment eliminated all of the footnotes and the more technical sections and references. Otherwise, the text and the political theory included in the one-volume version is identical to the corresponding sections of the three-volume version.

Story's one-volume Abridgment of his Commentaries may well have been even more influential than his three volume work, because it saw a much larger audience, as Story had expected. The Abridgment became required reading at Harvard and in other academic centers, such as the Citadel at Charleston, which used Story's book until 1850, when it was replaced by the writings of Calhoun.[34] The Abridgment influenced at least two generations of academics, the bench, and the bar. Soon after the Abridgment's publication it was translated into French, and later published in Spanish.

The passage of time has vindicated Story's view regarding the basic role of the Constitution, as reflected in his Commentaries on the Constitution. Perhaps Story's Commentaries have stood the test of time, "simply because they were on the winning side of history. But surely, to some extent, Story's side won because he was on it."[35]

Joseph Story, lawyer, teacher, scholar, author, jurist. When we celebrate our Constitution and what it has become, in no small measure we celebrate him. A man for all seasons.