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The Republican Synthesis and Judicial Biography: Newmyer's Supreme Court Justice Joseph Story
Published online by Cambridge University Press: 20 November 2018
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- Review Essays
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- Copyright © American Bar Foundation, 1985
References
1 See, e.g., L. Hartz, The Liberal Tradition in America (1956).Google Scholar
2 This is obviously a caricature, useful only for this sort of introductory overview, of works that are much more carefully qualified in their assertions.Google Scholar
3 For reviews of the literature, see Shalhope, Republicanism and Early American Historiography, 39 Wm. & Mary Q. 334 (1982); id., Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography, 29 Wm. & Mary Q. 49 (3d ser. 1972).Google Scholar
4 Bailyn, B., The Ideological Origins of the American Revolution (1967).Google Scholar
5 Wood, G., The Creation of the American Republic, 1776–1787 (1969).Google Scholar
6 The difficulties were that the ability of religion to induce civic-mindedness was impaired by an increasing secularism and decreasing piety among the groups most likely to participate in political life, and that it became hard to see how the sphere of education could be limited so as to avoid indoctrination by those in charge of the process.Google Scholar
7 Ellis, R., The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971), is a relatively early work on which some of the themes of the republican synthesis are discussed in connection with the judiciary.Google Scholar
8 The most recent is G. Dunne, Justice Joseph Story and the Rise of the Supreme Court (1970).Google Scholar
9 Newmyer notes that “[w]hen I began the book, studies of republicanism in the early national period were almost nonexistent” and that the “spate of fine studies” since then had “not always [appeared] in time for me to make use of them” (at xv). Writing a biography of this scope is, as Newmyer says, a long and tedious effort (at ix), but I do note that Newmyer published an article about the Charles River Bridge case invoking “republicanism” in 1973, a year after Shalhope's first review article; see supra note 3. In my view the book would have been materially strengthened had Newmyer integrated into his study more of the more recent work on republicanism.Google Scholar
10 Newmyer recurrently slips in present-day colloquialisms, which are jarring and which occur often enough to disrupt the flow of the narrative—see, e.g., at 14, 78, 99, 145,200,211, 231,282, 315, 342, 346, 360, 364. There are also some infeles—see, e.g., at xv (republicanism an “illusive” term), 33 (“quasi-naval war” with France), 100 (referring to defense “council” in lawsuit), 150 (referring to the “reserve-power doctrine”), 334 (state laws “evinced” by state statutes), 382 (referring to Story's “fulsome” praise of colleague). I also noticed a few errors and questionable interpretations-see, e.g., at 85 (puzzling reference to Martin v. Hunter's Lessee as rejecting something analogous to “the right of the legislature to define… crime”; arguably this refers to Martin's discussion of the power of the Virginia legislature tore-define the common law process of inquest of office, but if so, Newmyer should have made the point clearer), 294 (specific performance “potentially contradict[s]… damage awards”; there is a thought here, but it needs much elaboration). A final item in this list of complaints is, I think, more important. Some historians insist it is their task to summarize elaborate arguments by crisp quotations from their sources and by rephrasing in their own words. In a work about the assumptions underpinning judicial reasoning, it is important to see exactly how an argument develops, and summaries are unsatisfying. Newmyer rarely commits this error, but he does so in his discussion of the Charles River Bridge case, which is therefore weaker than it should be. See at 227–28. See also at 298–99, 329.Google Scholar
11 This conflict is the theme of 3. Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s (1984).Google Scholar
12 One version of the failure of republicanism would be that the dynamics of capitalist growth eventually made it impossible to sustain the distinction between these spheres.Google Scholar
13 See at 30 (“individual ambition might serve national greatness”), 45–46, 54.I note my misgivings about Newmyer's use of more detailed dimensions of republicanism to explain Story's upbringing and his understanding of it (at 11–20; see esp. at 17). What is meant to be explanatory is described on a high enough level of generality to be platitudinous and therefore lacking in explanatory force. I realize that biographers must often be tempted, out of the need to find some framework for the limited information they may have about their subjects' early lives, to read into that information the themes they find useful to describe their subjects’ later lives. But in this case I believe the temptation should have been resisted.Google Scholar
14 See Federalist 10.Google Scholar
15 See Federalist 45 & 46.Google Scholar
16 See Federalist 51.Google Scholar
17 Compare Federalist 84 (denying need for bill of rights) with Federalist 78 (defending judicial review).Google Scholar
18 At 38. See also at 71–72 (“Law and politics were for [Story] different ways of doing things: One was based on principle and science and the other on compromise and short-term self-interest”); 55 (dissatisfaction with party), 63 (same).Google Scholar
19 At 281–89. For further discussion of Story's treatises, see text accompanying notes 27–28 infra.Google Scholar
20 At 137–43 (on patent and copyright law). See also at 147.Google Scholar
21 At 244–45. See also at 121–22 (referring to “community lawmaking process” and “the detailed workings of the business community”); 326 (common law was the “functional bridge” between judges and businessmen).Google Scholar
22 At 314. Here as elsewhere Newrnyer appears to endorse the view that law served these various needs. See, e.g., at 139, 230. It is true and interesting that Story believed law as a science served economic needs, but it is almost certainly false that law in fact did so. For a useful discussion, see Gordon, , Critical Legal Histories, 36 Stan. L. Rev. 57, 59–81 (1984).Google Scholar
23 At ch. 6. See esp. at 217–18.Google Scholar
24 See also at 247 (on “the ungluing of the republican synthesis, the failure of conservative strategy to contain the forces of democracy,” citing to Wood, supra note 5, and Shalhope (1972), supra note 3); and at 357–58 (on abolitionism as popular challenge to republicanism).Google Scholar
25 See at 112–13 (“in all [of his] roles, from the force of training and the inclination of his mind, Story approached the law comprehensively and architectonically”).Google Scholar
26 See text accompanying note 21 supra, and at 327–28.Google Scholar
27 At 245–46. Newmyer does not point out how vacuous this idea really is.Google Scholar
28 But see at 290–91 (unity of Story's treatises on commercial law). This unity, generated by Story's sense of what mattered to business, is far removed from Blackstone's.Google Scholar