Story, Joseph (1779–1845)

AuthorHenry Steele Commager, Richard B. Bernstein

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Joseph Story's contributions to American nationalism were as great as those of any other figure in American judicial history. The record of his career?his thirty-four years as an associate Justice of the Supreme Court, his hundreds of opinions delivered from the First Circuit Court (of Appeals), his many influential Commentaries, his contributions to the creation of admiralty and commercial law and EQUITY jurisprudence, his re-creation of the Harvard Law School?is more abundant, more distinguished, and more fertile than that of any jurist of his generation. Imbued with a deep pride in the American nation, Story believed that nationalism should proclaim itself in the might of the

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government and the majesty of the law, and in the expression of this philosophy he was articulate beyond any of his fellow jurists. Ceaselessly?in Congress, on the bench, from the professor's podium and the speaker's platform, in his study, and through his voluminous correspondence?he admonished the American people to exalt the nation and to preserve the Constitution and adapt it to the exigencies of history.

Born in Marblehead, Massachusetts, in 1779, Story graduated from Harvard College in 1798, read law, and began legal practice in Salem in 1801. In 1807 New England land speculators retained him to protect their interests in the notorious Yazoo lands controversy; his argument before the Supreme Court in their behalf was accepted by Chief Justice JOHN MARSHALL for the Court in FLETCHER V. PECK (1810).

A conservative Republican in a predominantly Federalist state, Story served for three years (1805?1808) in the Massachusetts legislature and then briefly (1808?1809) in the national House of Representatives. Though nominally a Republican, Story early displayed his independence by openly challenging President THOMAS JEFFERSON'S policies on naval preparedness and on the Embargo; Jefferson blamed the "pseudo-Republican," Story, for the repeal of that Embargo, which he had hoped would be a substitute for war. On returning to Massachusetts, Story reentered the state legislature and in 1811 was elected its speaker. When Justice WILLIAM CUSHING of Massachusetts died in 1810, Story was one of four candidates proposed to President JAMES MADISON as Cushing's successor. Not having forgiven Story's opposition to the Embargo, Jefferson protested to Madison that Story was "unquestionably a tory ? and too young." Only after three other prospective nominees?LEVI LINCOLN, Alexander Wolcott, and JOHN QUINCY ADAMS?had declined the nomination or were rejected by the Senate did Madison turn to Story. At thirty-two, he was?and remains?the youngest appointee in the history of the Court.

When Story took his seat on the Bench in 1812, he was already an ardent nationalist. From the beginning he endorsed that BROAD CONSTRUCTION of the Constitution that we associate with Marshall, and throughout Marshall's life he was not so much a disciple of as a collaborator with the Chief Justice. For the next quarter century, these two magisterial jurists presented a united front on most major constitutional issues; only on the issue of PRESIDENTIAL POWERS in wartime, raised in Brown v. United States (1814), and a few issues of admiralty, international, and prize law did they ever disagree. Yet throughout his judicial career, Story's was an independent and original mind different in style if not in philosophy from Marshall's. Story respected and even venerated the Chief Justice, and the respect was mutual. If Story looked to Marshall for authoritative exposition of the Constitution, Marshall looked to Story for the substantiation of his logic and for help in other areas of law?notably in admiralty, conflict of laws, and equity. And when Story spoke on constitutional issues, it was in no mere imitative tones; frequently he pointed the way that Marshall later followed, as when his great opinion in MARTIN V. HUNTER ' S LESSEE (1816) anticipated Marshall's opinion in COHENS V. VIRGINIA (1821). Although in some areas?such as the interpretation of the COMMERCE, NECESSARY AND PROPER, and CONTRACT CLAUSES of the Constitution?Marshall blazed the way, in others?notably those concerning the proper realms of executive and judicial power, issues of concurrent state and national power, and the creation of a uniform national commercial law?Story's was the greater overall achievement.

What emerges most strikingly from a study of Story's constitutional opinions is his passionate commitment to the authority of the national government in the federal system. He was quick to counter any attack or limitation upon its powers; he was alert to the potentialities of the concept of IMPLIED POWERS; he was ambitious to extend federal JURISDICTION by judicial opinion, legislation, or doctrinal writing. His ambitions were chiefly for the judiciary, for whose authority he was acquisitive and even belligerent, but he made bold claims for the national executive and legislative powers as well.

Story's solicitude for national executive authority was early asserted in Brown v. United States (1814), one of the few constitutional cases where he and Marshall disagreed. The issue presented was the validity of the confiscation of enemy...

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