Abstract

When Joseph Story published his Commentaries on the Constitution in 1833, he dedicated the work "To the Honorable John Marshall," whose "expositions of constitutional law enjoy a rare and extraordinary authority. They constitute a monument of fame far beyond the ordinary memorials of political and military glory." Throughout the Commentaries, Story generously quoted Chief Justice Marshall's great nationalist opinions in McCulloch v. Maryland, Gibbons v. Ogden, and Cohens v. Virginia and used them to construct a thoroughly nationalist reading of the federal Constitution. Along the way, Story seemingly dismantled prior states' rights interpretations of federal power, particularly St. George Tucker's theory of strict construction from his View of the Constitution of the United States. In writing his Commentaries, Story sought to put the final nail in the coffin of the older "compact theory" of the Constitution. Under compact theory, which viewed the document as emanating from the several states instead of a unitary "People" of the United States, any grant of power to the federal government should be narrowly construed to preserve the independence of the sovereign states. As an alternative theory, Story cited Chief Justice Marshall's "forcibly stated" opinion in McCulloch and his own reasoning in Martin v. Hunter's Lessee, which declared "[t]he constitution of the United States ... was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States." Instead of strict construction, Story's reading of the Constitution called for a broad construction of federal powers in order to best serve the (national) purposes of the sovereign people of the United States.

Story's Commentaries has been celebrated as among the most scholarly and influential of the constitutional treatises emerging from nineteenth-century America. In his magisterial The Marshall Court and Cultural Change, G. Edward White devoted substantial attention to Story's Commentaries and his dismantling of the Jeffersonian compact theory of constitutional interpretation. According to Nowak and Rotunda in their introduction to the abridged version of the Commentaries, "[t]he passage of time has vindicated Story's view regarding the basic role of the Constitution." In fact, most scholars today treat Story's work as an exemplary and prescient source of early constitutional understanding. As R. Kent Newmyer asserted, Story's Commentaries "were on the winning side of history."

Document Type

Article

Publication Date

2006

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