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  • Constitutional Politics in the Age of Joseph StoryJohn C. Harrison

    Abstract: Supreme Court Justice Joseph Story was aNational Republican, and the basic constitutional thesis ofnational republicanism was that the Constitution estab-lishes a national government with the power to provide thelegal, financial, and physical infrastructure for a dynamicand expanding national economy that involves extensiveinterstate and international commerce (in the sense of buy-ing and selling). Storys doctrine of the Constitution imple-mented each of those principles. He was a proponent of astrong federal judiciary in the sense of one with broad juris-diction. In Storys vision of America, good government sup-ported the efforts of the virtuous and industrious to makeeconomic and moral progress. However, Martin Van Burensaw Storys political system as one ruled by self-interestedelites who were not faithful agents of the people, and soughtto invent a political instrumentality more powerful thanCongress, the President, and the federal courts put togeth-er: a modern political party.

    In the published version of an Andrew Lang Lec-ture titled On Fairy-Stories that he had delivered inScotland in 1938, the Rawlinson and Bosworth Pro-fessor of Anglo-Saxon at Oxford, J. R. R. Tolkien, said

    To be invited to lecture in St. Andrews is a highcompliment for any man; to be allowed to speakabout fairy-stories is (for an Englishman in Scot-land) a perilous honour. I felt like a conjuror whofinds himself, by some mistake, called upon togive a display of magic before the court of an elf-king. After producing his rabbit, such a clumsy

    No. 1171Delivered October 21, 2009 October 20, 2010

    This paper, in its entirety, can be found at: http://report.heritage.org/hl1171

    The Joseph Story Lectures

    Produced by the Center for Legal & Judicial Studies

    Published by The Heritage Foundation214 Massachusetts Avenue, NEWashington, DC 200024999(202) 546-4400 heritage.org

    Nothing written here is to be construed as necessarily reflect-ing the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.

    Talking Points In his politics Joseph Story was a National

    Republican, and the basic constitutional the-sis of national republicanism was that theConstitution establishes a national govern-ment with the power to provide the legal,financial, and physical infrastructure for adynamic and expanding national economy.

    Story was a proponent of a strong federaljudiciary in the sense of one with broadjurisdiction.

    For Story, good government supported theefforts of the virtuous and industrious tomake economic and moral progress.

    Martin Van Buren saw Storys political sys-tem as one ruled by self-interested elites whowere not faithful agents of the people, andsought to invent a political instrumentalitymore powerful than Congress, the President,and the federal courts put together: a mod-ern political party.

    Constitutional politics refers to the politicalstructures and mechanisms that cause legalrules, especially rules that govern the powersand decision-making processes of the gov-ernment, to resist change.

  • page 2

    No. 1171 Delivered October 21, 2009

    performer may consider himself lucky, if heis allowed to go home in his proper shape, orindeed to go home at all.1

    That is how I felt to be introduced by Mr. Meesein a lecture series inaugurated by Judge Bork.

    In that Andrew Lang Lecture, Tolkien pointedout the importance of his subject matter, in whichthe gods themselves regularly appear. The gods areafter all gods, and it is a matter of some momentwhat stories are told of them.2 In John MarshallPark, a few blocks from The Heritage Foundation,outside the building where I clerked for Judge Bork,is a statue of Joseph Storys great friend and col-league, the Chief Justice, by William Wetmore Story.There is also a famous statue of Story himself, againby William Wetmore, in a building in Cambridge,Massachusetts, named after the author of a con-tracts casebook.3

    Thus presented in bronze and marble, Storyand Marshall are gods, and one must be very care-ful what stories one tells of them. So that I mayspeak freely, instead of talking about the marblefigure at Langdell Hall, I will talk, not about thegod, but about an important but more life-sizesubject: the author of DeLovio v. Boit,4 which willfigure in this story.

    In his politics Joseph Story was a National Repub-lican, and the basic constitutional thesis of nationalrepublicanism was that the Constitution establishesa national government with the power to provide thelegal, financial, and physical infrastructure for adynamic and expanding national economy that

    involves extensive interstate and international com-merce (in the sense of buying and selling).5

    Storys doctrine of the Constitution implementedeach of those principles. As he was a judge especial-ly concerned with the role of the courts, I will startwith the legal infrastructure, which he sought toprovide both structurally and substantively.

    Structurally, or wholesale as it may be put, Storywas a proponent of a strong federal judiciary in thesense of one with broad jurisdiction. I mentionedDeLovio v. Boit, a case the importance of which in itsday surpasses its notoriety in the 21st century,except among specialists. DeLovio held that contractsfor marine insurance, a very important componentof maritime commerce then as now, were within thefederal admiralty jurisdiction. That may seem obvi-ous today, but it was not obvious then, for reasonsthat appear once you think about it. Marine insur-ance contracts are made and executed on land,although they are about transactions at sea. They donot involve one of the standard justifications foradmiralty jurisdiction: that events in one port mightgive rise to lawsuits in another. Rather, the ship-owners and insurers were routinely all in the samecity (so that there wouldnt be diversity jurisdiction).

    But Story believed that commercial men neededexpert and unbiased tribunals, unbiased here mean-ing without local bias, and so maybe just a little bitbiased in favor of nationwide or international busi-ness. The federal courts could be counted on to belike that, especially when he was sitting, state courtsnot necessarily. So he wanted an admiralty jurisdic-tion as extensive as it reasonably could be.6 Not justthe admiralty jurisdiction. Story maintained that

    1. J.R.R. TOLKIEN, On Fairy-Stories, in ESSAYS PRESENTED TO CHARLES WILLIAMS 38 (C. S. Lewis, ed., 1947, pap. ed. 1966).

    2. Id. at 56.

    3. My account of Storys thought draws heavily on the definitive work on his life and thought, R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC (1985). A picture of the statue at Harvard appears at 236.

    4. 7 F. Cas. 418 (C.C. D. Mass. 1815) (No. 3776).

    5. As Newmyer puts it, the law as Story saw it took its character and spirit from the practical needs of real people and more specifically from the needs of the business community and the imperatives of the market as he saw them operate in New England. This was true of Storys constitutional law as well as his private law; indeed, in his American plan there was no disjunction between the two. Newmyer, supra note 3, at 116. As Newmyer explains, Storys National Republican view of the appropriate role of a strong federal government was hardly limited to the courts. Storys plans for national grandeur as expressed to Nathaniel Williams in 1815which included a standing army, a permanent navy, national military and naval schools and a national bankdepended on executive initiative and congressional power. And such power his opinions sought to supply. Id. at 97 (footnote omitted).

  • page 3

    No. 1171 Delivered October 21, 2009

    Congress was under an obligation to create courtsthat could exercise the full Article III jurisdiction,which implied that it must create lower federalcourts, as some of that jurisdiction is original andmay not be exercised by the Supreme Court of theUnited States.7

    I call his structural positionextensive federaljurisdictiona wholesale implementation of hisviews because he thought that federal courts would,in general, make better decisions than state courts,and for him better decisions would be those thatfacilitated large-scale commercial transactions. Thatis the key to understanding the Story case that ismuch more famous today than DeLovio, thoughfamous for having been rejected: Swift v. Tyson.8

    Swift was a diversity case involving a bills andnotes question. It is best known (though not alwayswell understood) for the general principle that thefederal courts, in deciding cases under general com-mercial law, are not bound by the precedents of thestate courts on that subject. That is not surprising ifyou believe that federal courts are bettertechni-cally more expert and less biasedthan statecourts, and so will find and apply the right law. Ofcourse the unbiased experts should not be boundby the decisions of local hacks.

    The actual substance of Swift, the retail part,reinforces the point. Story departed from the viewsof the New York courts on a question of negotia-bility, and took the view that facilitated negotiabilityat the expense of cutting off certain rights againstsubsequent purchasers. A strong holder in duecourse principle is very useful if strangers are goingto engage in commerce in many states and overlong distances.9

    National courts applying pro-business substan-tive law to economic transactions were one part of

    the program of supplying legal infrastructure.Another was a substantive doctrinal principle forwhich Story remains famous today, at least to stu-dents of constitutional history. In the late 18th andearly 19th centuries, corporate charters were not