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Introduction

by Arthur E. Sutherland

This reprint of Joseph Story's 1833 Commentaries on the Constitution of the United States provides a welcome revival for a significant work in the literature of American constitutionalism. Today, a century and a third after Story's book first appeared, the fundamental law of the American republic is under more intense scrutiny than at any time since 1789, when the Constitution first became effective. Most of the urgent questions of present day domestic policy turn on the division of power to govern between the states and the national government. Allocation of national effort by means of heavier national taxation and selective federal expenditure; increasingly comprehensive control of the nation's economy under national legislation effectuated by federal administrators; more and more strict supervision of the administration of justice by federal courts which often irk state prosecutors and judges; readjustment of race relations, of labor relations, of land use in urban complexes — all relate in one way or another to a shift in governmental power from the local to the national.

Every change in government restricts some men for the benefit of others, and men so restricted are apt, under our system, to cry out that the change is unconstitutional. Story's Constitution is immensely useful for evaluating the arguments of those who contend that diminished local authority and the shift toward national control are counter to our historic constitutional ways. Story wrote, of course, before the Civil War, and before the Thirteenth, Fourteenth, and Fifteenth Amendments had institutionalized that war's results and had emphasized the diminution of state sovereignty which the Union victory had demonstrated. He wrote before the dramatic efflorescence of technology, of transportation and communication, which followed the peace of 1865, and which made inevitably necessary an increasing federal control of all the ensuing aggregate of mechanical and human apparatus — railroad trains, electric power lines, radio broadcasts do not stop at state lines. And he wrote before the Income Tax Amendment of 1913 had increased federal power to canalize public revenue and expenditure, thereby still further centralizing the total government of the nation. But the perceptive reader of Story's 1833 book sees that the author, a justice of the United States Supreme Court and Dane Professor of Law at Harvard, was a fully committed believer in Chief Justice John Marshall's broad concept of national power. The details of federal concern have changed, but Story was ready, a century and a third ago, to find the government of the United States adequate to the tasks of its time and to find in the Supreme Court ample powers to carry out its share of expanded national duties. His Constitution treatise has a lesson for our own time.

Story was born in Marblehead, Massachusetts, in 1779, graduated from Harvard in 1798, read law in Samuel Sewall's office in Marblehead, was admitted to the Massachusetts Bar in 1801, and began practice in Salem. Essex County was a strong center of the John Adams Federalists. Young Story turned instead toward Jefferson's Republican Party, ancestor of the present Democrats, a move undoubtedly fortunate for his later career. He was elected to the state legislature in 1805 and to the House of Representatives in 1808. In the time not allotted to his law practice and political activity, he began his career as a writer on legal subjects. He started with an annotated Selection of Pleadings in Civil Actions (1805), and then went on to produce American editions of standard English treatises on commercial paper, on the law of shipping, and on legal procedure — areas in which American lawyers still followed English precedent. In 1810 Story appeared in the Supreme Court as successful counsel for one John Peck in the first case in which that Court held invalid a state statute on the ground that it violated the United States Constitution. 1 In 1811, when Story was only thirty-two years old, President Madison appointed him an Associate Justice of the Supreme Court of the United States.

The work of the Supreme Court itself was much lighter in 1811 than it is now, but the individual justices were then required to go on circuit in various parts of the United States, where, as circuit justices, they presided over trials in the circuit courts and heard appeals from the federal district courts. Thus Story not only sat on the Supreme Court in Washington several months each year, but he also held circuit courts in New Hampshire, Massachusetts (part of which became Maine in 1820), and Rhode Island. With all of these judicial duties, he nevertheless continued his writing. In 1829 Harvard appointed him Dane Professor of Law on the understanding that, like Blackstone at Oxford before him, he would not only lecture on various legal topics, but would publish those lectures as treatises. Harvard also contemplated that Story would remain on the Supreme Court, and he thus continued both as associate justice and as professor of law until he died in September, 1845. 2

In January, 1832, Story published the first offshoot of his Dane professorship, a book on the Law of Bailments. This was a practical treatise, not novel, useful in its day, now read only by legal antiquarians. A year later he published the second treatise of his Dane chair, the three volume Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Of the nine books which Story wrote during his Dane professorship, his Constitution has been the most read, the most reprinted.

Story's Constitution was not the first American book on the subject. Hamilton, Madison, and Jay had written the Federalist Papers, which appeared serially in newspapers in 1787-1788 and which ever since, as published in book form and republished in numerous editions, has remained an invaluable commentary. The first volume of St. George Tucker's 1803 edition of Blackstone contained, as a 237-page appendix, a "View of the Constitution of the United States." Thomas Sergeant published his Constitutional Law in Philadelphia in 1822; a second edition appeared in 1830. William Rawle published his View of the Constitution in Philadelphia in 1825. Rawle's book is now principally remembered because he expressed in it the view that any state of the Union could constitutionally secede if the unequivocal voices of the state's people so determined. Rawle's text was used for instruction at West Point when the men who came to lead the Confederate armies in 1861-1865 were cadets. Kent's Commentaries of 1826 and Dane's Abridgment of 1823-1829 contained much constitutional commentary. Story was familiar with all these works.

But none of these earlier books had a sweep even approaching that of Story's Constitution; no one of their authors had Story's equipment. He had been a young lawyer when the Jefferson-Marshall antagonism came to a head in 1803 in the Supreme Court's Marbury v. Madison, 3 which established that Court's power to declare an act of Congress unconstitutional — a power which Story vigorously supported thirty years later in his Constitution. 4 He had been counsel in the first case to hold a state statute unconstitutional. 5 He had sat on the Supreme Court from 1811 while Marshall's doctrines of strong national power were becoming entrenched, in a series of notable opinions, as the very foundations of American constitutionalism. And by 1833 he had mastered the art of authorship. His Constitution deserved its immediate popularity.

New American editions appeared in 1851, 1858, 1873, and 1891; the last — the fifth edition — was reprinted in 1905. A French translation appeared in 1843, somewhat abridged, with cross references to Tocqueville and other writers. Latin America during the mid-nineteenth century was trying to develop federal systems on the model of the United States, and Spanish editions of Story's Constitution appeared in Buenos Aires in 1860, 1881, and 1888, and in Mexico in 1879. A Brazilian edition, in Portuguese, was published between 1894 and 1896. Story himself, in 1834, brought out an abridged version entitled The Constitutional Class Book, intended, as he wrote, for "the higher classes in common schools." His abridgment ran through a series of editions in the middle and later years of the nineteenth century under the amended title, A Familiar Exposition of the Constitution.

But by 1905, when the reprint of the fifth American edition of the complete work appeared, the book had already become outdated as a currently useful text on American constitutional; law. The increasing use of the Fourteenth Amendment's due process and equal protection clauses as limitations on state economic regulation called for fundamentally revised constitutional texts.

Thomas M. Cooley's 1868 Constitutional Limitations and its several revised editions undoubtedly replaced Story's treatise in many libraries as a lawyer's working tool. The rise of casebooks for law-school instruction on the Constitution, led by James Bradley Thayer's massive two volume Cases on Constitutional Law of 1895, made Story's book less saleable for student use. Westel Woodbury Willoughby's three-volume Constitutional Law of the United States, published in 1910, and its "second edition" of 1928, became the standard reference text of the second and third decades of the twentieth century.

But all these scholarly books, from Cooley on, are products of lamp and library. Story on the other hand had lived in the first great formative era of American constitutionalism, had taken part in most of the great Supreme Court decisions which then made up its substance. To a large extent Story's 1833 book attains the status of a primary source. Copies of the first edition are hard to find and costly. A reprint is welcome alike to professional scholars and to those thoughtful laymen who are interested in the constitutional development of the United States.

Arthur E. Sutherland, Cambridge, Massachusetts May, 1968

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1. Fletcher v. Peck, 6 Cranch 138 (1810). Peck had deeded lands in the State of Georgia to Fletcher. The Georgia legislature had passed a law holding Peck's title invalid. Fletcher sued Peck for selling lands he did not own. The Supreme Court held the Georgia statute invalid because it attempted to "impair the obligation of a contract," in violation of Article I, 10 of the U. S. Constitution.

2. A useful biography is Life and Letters of Joseph Story, written by his son, William Wetmore Story.

3. 1 Cranch 137.

4. 1570 ff. Story explicitly endorses the Marbury doctrine, citing the case.

5. Fletcher v. Peck, 6 Cranch 87 (1810).


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