Joseph Story

Joseph Story
Associate Justice of the Supreme Court of the United States
In office
November 18, 1811 – September 10, 1845
Nominated by James Madison
Preceded by William Cushing
Succeeded by Levi Woodbury
Member of the U.S. House of Representatives
from Massachusetts's 2nd district
In office
May 23, 1808 – March 4, 1809
Preceded by Jacob Crowninshield
Succeeded by Benjamin Pickman Jr.
Personal details
Born (1779-09-18)September 18, 1779
Marblehead, Massachusetts, U.S.
Died September 10, 1845(1845-09-10) (aged 65)
Cambridge, Massachusetts, U.S.
Political party Democratic-Republican
Education Harvard University (BA)

Joseph Story (September 18, 1779 – September 10, 1845) was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered for his opinions in Martin v. Hunter's Lessee and The Amistad case, and especially for his magisterial Commentaries on the Constitution of the United States, first published in 1833. Dominating the field in the 19th century, this work is a cornerstone of early American jurisprudence. It is the second comprehensive treatise on the provisions of the U.S. Constitution and remains a critical source of historical information about the forming of the American republic and the early struggles to define its law.

Story opposed Jacksonian democracy, saying it was "oppression" of property rights by republican governments when popular majorities began (in the 1830s) to restrict and erode the property rights of the minority of rich men.[1] R. Kent Newmyer presents Story as a "Statesman of the Old Republic" who tried to be above democratic politics and to shape the law in accordance with the republicanism of Alexander Hamilton and John Marshall and the New England Whigs of the 1820s and 1830s, including Daniel Webster.[2] Historians agree that Justice Joseph Story reshaped American law—as much or more than Marshall or anyone else—in a conservative direction that protected property rights.[3]

He was uniquely honored in the historical Steven Spielberg film Amistad when he was portrayed by retired Associate Justice of the U. S. Supreme Court Harry Blackmun. Justice Blackmun portrays Justice Story reading the Supreme Court's decision in the case in which the film was based, and for which Justice Story was most widely remembered, United States v. The Amistad Africans, et al. This is the only time in known film history that an Associate Justice of the Supreme Court has portrayed another Associate Justice.

Early life

Story was born at Marblehead, Massachusetts. His father was Dr. Elisha Story, a member of the Sons of Liberty who took part in the Boston Tea Party in 1773.[4] Dr. Story moved from Boston to Marblehead during the American Revolutionary War. His first wife, Ruth (née Ruddock) died and Story remarried in November 1778, to Mehitable Pedrick, nineteen, the daughter of a wealthy shipping merchant who lost his fortune during the war.[5] Joseph was the first-born of eleven children of the second marriage. (Story also fathered seven children from his first marriage.)[6]

As a boy, Joseph studied at the Marblehead Academy until the fall of 1794, where he was taught by schoolmaster William Harris, later president of Columbia University. At Marblehead he chastized a fellow schoolmate and Harris responded by beating him in front of the school; his father withdrew him immediately afterward.[7] Story was accepted at Harvard University in January 1795;[8] he joined Adelphi, a student-run literary review, and was admitted to the Phi Beta Kappa Society.[9] He graduated from Harvard in 1798, second in his class behind William Ellery Channing; he noted that his graduation was with "many bitter tears".[10] He read law in Marblehead under Samuel Sewall, then a congressman and later chief justice of Massachusetts. He later read law under Samuel Putnam in Salem.

He was admitted to the bar at Salem, Massachusetts in 1801. As the only lawyer in Essex County aligned with the Jeffersonian Democratic-Republicans, he was hired as counsel to the powerful Republican shipping firm of George Crowninshield & Sons. Story was also writing poetry and, in 1804, published "The Power of Solitude", one of the first long poems by an American. In 1805 he was elected to the Massachusetts House of Representatives, serving until 1808, when he succeeded a Crowninshield son to represent Essex County in the Congress, serving from December 1808 to March 1809. There he led the effort to end the 'Jefferson' embargo of maritime commerce. He re-entered private practice in Salem; and was again elected to the state House of Representatives, where he was chosen Speaker in 1811.

Story's young wife, Mary F.L. Oliver, died in June 1805, shortly after their marriage and two months after the death of his beloved father. In August 1808, he married Sarah Waldo Wetmore, the daughter of Judge William Wetmore of Boston. They had seven children but only two, Mary and William Wetmore Story, would survive to adulthood. Their son became a noted poet and sculptor—his bust of his father was mounted in the Harvard Law School Library—who would later publish The Life and Letters of Joseph Story (2 vols., Boston and London, 1851). Volume I and Volume II

Story was elected a Fellow of the American Academy of Arts and Sciences in 1810,[11] and a member of the American Antiquarian Society in 1814.[12] He would later serve as that society's vice-president from 1831-1845.[13]

Supreme Court justice

Bust of Joseph Story, sculpted by his son William Wetmore Story, currently on display at the United States Supreme Court building.

In November 1811, at the age of thirty-two, Story became the youngest Associate Justice of the Supreme Court of the United States. President James Madison nominated Story on November 15, 1811 to a seat vacated by William Cushing. John Quincy Adams was Madison's previous choice for this seat, but he declined, finding his services as a diplomat in Russia more rewarding and more useful to the United States. The United States Senate confirmed Story's nomination and Madison signed his commission on November 18, 1811. Story swore his oath and assumed office on February 3, 1812. Story remains the youngest Supreme Court Justice at appointment. Here he found a congenial home for the brilliance of his scholarship and the development and expression of his political philosophy.

Soon after Story's appointment, the Supreme Court began to bring out into plain view the powers which the United States Constitution had given it over state courts and state legislation. Chief Justice John Marshall led this effort, but Story had a very large share in the remarkable decisions and opinions issued from 1812 until 1832. From Story's early days on the Court he became one of Justice Marshall's strongest allies. Of the opinions issued at this time, Story wrote more than any justice but Marshall. Story's early jurisprudence mimicked that of the chief justice. The most significant of his early opinions were clearly those of Fairfax Devisee v. Hunter's Lessee and the subsequent Martin v. Hunter's Lessee. In Fairfax, the Court was forced to consider the constitutionality of the Confiscation Act, passed by the state of Virginia to take land from citizens who had sympathized with the British during the Revolution. This legislation ran contrary to terms of Jay's Treaty, negotiated in 1794, which provided that property was to return to the Tories. The Court, headed by Story, unanimously agree that the law was forced to give way before the terms of Jay's Treaty. This remained consistent with the larger body of the Marshall Court's work in which Story and Marshall sought to establish a strong federal Union.

However, the work of establishing this Union was still in its infancy and as such Marshall and Story still encountered resistance. In this case, resistance came from the Virginia Court of Appeals, later called the Virginia Supreme Court, chaired by the influential Judge Spenser Roane. Roane and the Virginia Court refused to accept the ruling of the Supreme Court and instead claimed that the Supreme Court lacked the jurisdiction to issue a ruling binding upon Virginia's courts. The notion that the Supreme Court headed a national judiciary was still not widely accepted at this point. Questions such as the Supreme Court's jurisdiction still abounded in the early Republic. The resulting case, Martin v. Hunter's Lessee, addressed whether the Court had the power under the Judiciary Act of 1789 and the Constitution to hear a case on appeal from a state court. Story, once again speaking for the unanimous majority, ruled that the Court possessed the jurisdiction to rule on such issues. Ironically, just as Fletcher v. Peck was the case that first brought Story into contact with the Supreme Court, it was his opinion that would expand that prior holding.

Story's opinion in Martin v. Hunter's Lessee was profoundly significant before Story ever so much as addressed the issue explicitly. The manner in which Story framed the American republic is profoundly indicative of the his philosophy. Story noted, "The Constitution of the United States was established, not by the states in their sovereignty capacities, but emphatically, as the preamble declares 'by the people of the United States."[14] Story expanded upon Marshall's earlier rhetoric to create a more expansive proclamation of national sovereignty. Story argued that the language of the Constitution made it clear that federal power and consequently the power of the Supreme Court was necessarily supreme and uniform.

Regarding the nominal issue of the case, whether the Supreme Court possessed appellate jurisdiction over the states, Story argued that the Court must possess such jurisdiction. Without national oversight over local courts the law could become discordant. This fear of discordant law was part of Story's belief in legal science, in this instance manifested as a belief in the uniformity of law. Without uniformity, each state would be allowed to develop its own idiosyncrasies, and such provincialism ran contrary to Story's aim of a national republic. Story citied the Constitution's assertion to be "The supreme law of the land" and that "Judges in every state shall be bound thereby".[15] To Story, the text of the Constitution, inherently supported the claim of national power. Martin v. Hunter's Lessee was profoundly signifiant. The case can be compared to both Marbury v. Madison and Fletcher v. Peck. Just as the former first asserted the claim of judicial review, Martin v. Hunter's Lessee asserted the Court's right to appellate jurisdiction over state courts. Much like Fletcher v. Peck, Martin expanded the Court's growing rhetoric of national supremacy. Preempting John C. Calhoun, Story saw state sovereignty as a threat to the stability of the American empire. To that end, asserting the sovereignty of the people of the United States, rather than that of the states, was integral to forming the national republic that Story desired.

Story's tenure on the Court was marked by two chief justices, John Marshall and Roger Taney. While Story was the staunchest ally and friend of the former, his relations with Taney were hardly so amicable. The transition started with the election of Andrew Jackson and the subsequent nominations of John McClean, Henry Baldwin, and James Wayne to the bench. This was further augmented with the replacement of the Chief Justice by Taney, another Jacksonian Democrat. Story was forced to come to grips with his new position in the Jacksonian court in, Proprietors of the Charles River Bridge v. Proprietors of Warren Bridge. This 1837 case involved the grant from the Massachusetts legislation, of a 40-year charter of a bridge to a group of private citizens over the Charles river. This grant was made with the provision that after the investors collected tolls for 40 years, the bridge would fall into public hands. The success of the Charles River Bridge, coupled with the growth of the cities of Boston and Charlestown, led the Massachusetts legislature to prompt the creation of the Warren Bridge, in almost the exact location, but free of toll. The creation of a new free bridge, next to the previous one, was objectionable to the owners of the previous bridge, who launched a suit claiming the creation of a new bridge violated their rights.

The case came to symbolize a profound transformation in Story's tenure on the Court. Initially Marshall's most influential ally, Story enjoyed the success that came along with the nearly uniform agreement by the justices in Marshall's Court. Following the death of the chief justice and the arrival of the Age of Jackson, Story for the first time on the bench, seemed out of step with the rest of the Court. The Court ruled 4-2 in favor of the Warren Bridge, rejected the petitioner's claim that their charter granted them exclusive rights. Story, writing for the minority, noted "I stand upon the old law."[16] Story's dissent would develop rhetoric from earlier Marshall Court cases such as Dartmouth College v. Woodward to argue that the charter must be read expansively and as such granted exclusive rights which could not be violated without impairing the obligation of contracts, forbidden under the Contracts Clause of Article 1 Section 10 of the Constitution. Story noted that perhaps the greatest irony of the case was that the Taney who wrote in favor of the Warren Bridge, claimed that granting exclusive rights to the Charles River Bridge Company would harm the community. To Story, the irony was the same legislature that granted said monopoly to the Charles River Bridge Company did so on the basis that a bridge would benefit the public. Story argued one ought not to second guess the motives of the legislature, only examine the charter which was to be understood expansively. Charles River Bridge illustrates the end of the Marshall Court's contract philosophy. In a clash that pitted the interests of entrenched capital and the needs of expanding communities, Story stood upon "the old law" and upheld the Marshall Court's belief in that contracts were sacred and must be regarded with deference in order to encourage investment. Oddly, both Taney and Story claimed that their views ought to prevail as it was required for economic growth and development. Taney stressed the wellbeing of the community as the primary impetus for economic growth, while Story stressed the security of contracts as a necessary condition for investment. Story's dissent also possessed elements of nationalism, in that he sought to secure capital by restraining state legislatures from amending contracts.

Oddly perhaps the most well known of Story's opinions is not among the most significant. Maybe the most remembered of Story's opinions is that of the Amistad Case, which made into a film by the same name, released in 1997 and directed by Steven Spielberg in which Story's role was played by retired Supreme Court justice Harry Blackmun. Story's opinion, for which he spoke for the unanimous majority, ruled regarding the freedom of a group of African slaves found aboard a Spanish ship off the New England coast. Specifically, as the slave trade had been long pronounced illegal, if the Court were to find that these were free kidnapped Africans, their Spanish captors would be susceptible to prosecution. The Spaniards had claimed that under a 1795 treaty, the United States was obligated to return Spanish property, the ship and the slaves. However, Story noted that as the Africans were clearly obtained through fraud, i.e. kidnapping, as such the Spanish claims under the Treaty were fraudulent and should be disregarded. Perhaps the best illustration of the relative lack of significance of the opinion is reflected in the vote in which Story was joined by all justices but Baldwin. Despite the Southern dominance of the Court at this time, the justices sided with Story and the Africans. To the Court, the Amistad Case involved a clear violation of the prohibition of the slave trade. Unlike the rather thorny issues of slavery in the United States which the Court would attempt to decide later, this issue presented a clear problem and remedy.

One of Story's more vexing opinions was Prigg v. Pennsylvania, in which he wrote for the majority in 1842. Story was forced to consider the constitutionality of a Pennsylvania personal liberty law which placed procedural requirements on those seeking to extradite fugitive slaves. Story, despite his hatred of slavery, sided with the southern justices to declare the Pennsylvania law unconstitutional. This appears especially hard to square with Story's anti-slavery philosophy, as one of the individuals kidnapped by Edward Prigg, the slave catcher in question, was actually not a slave at all. However, despite the outcome as appearing entirely in favor of the South, a more accurate assessment can been gleaned from the text and time period. Concerning the former, Story argued that fugitive slaves were addressed in the Article 4 Section 2. Despite the fact that slavery was not mentioned, Story concluded that it was all too clear that the clause was meant to secure runaway slaves for southern slaveholders. He went on to note, "The full recognition of the right and title was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed."[17] Story's apparent endorsement of slaveholders' rights must be read through this light, that the justice felt that this was a bargain integral to the Constitution. Consequently, Story had an obligation to honor the deal struck at the Constitutional Convention. Further insight is provided by the political activity of southerners of the day. H. Robert Baker notes, "Story chose the path that he believed best supported a strong Union and rejected the natural right of slaveholders to the people they claimed as property. His resonating opinion answered southern constitutional claims in ways that protected slaveholders' rights, but not on the terms they wanted."[18] In a time when extremism regarding the slavery question continued to rise, Story bridged the gulf by protecting slaveholder's rights, but as a power exclusive to the national government. His opinion confirmed the rights of southern pro-slavery advocates, yet at the same time maintained that despite their aggressive claims, the Court would only validate slavery not expand its privileges. Though the resulting bargain would likely have pleased neither abolitionists nor slaveholders, it best symbolized the position of Story, who though he no longer enjoyed a Court aligned with his own views, still carved out a compromise that preserved a strong federal Union. A major impact of the opinion was that it opened the path for refusal of cooperation with Federal laws; it said that states cannot impede Federal agents from enforcing Federal laws, but at the same time, states were not required to enforce Federal laws themselves. This is known as the anti-commandeering doctrine.

Though still embroiled in his struggle with Roger Taney, Story achieved his last great victory in Swift v. Tyson. This 1842 case concerned a bill of exchange, essentially a promise of payment, given from a businessman in New York, in exchange for land in Maine. However, the individuals who received the bill of exchange, Jarius Keith and Nathaniel Norton, did not own the land in question. The central issue of the case focused on Article 34 of the Judiciary Act of 1789 which established that the Court was to employ state statutes as authoritative rules when they were applicable for the Court's cases. Story, ever the nationalist, had long despised using state statutes as authoritative when he deemed federal common law a much more preferably alternative. Simply put, Story longed to place more power in the hands of judges, in particular federal judges, instead of local legislatures. Though Story, writing for the unanimous majority, rejected the fraudulent Bill of Exchange, this remains less significant than his development of federal common law. As aforementioned, section 34 of the Federal Judiciary Act of 1789 held that courts were bound to local state statues. Story, though had long desired to establish federal common law, had been unable to sway sufficient support to the cause. In Swift, he finally rallied sufficient support to chip away at the barrier. He noted, "This section (34 of the Judiciary Act), upon it sure intendment and construction, is strictly limited to local statutes and local usages of the character before started, and does not extend to contracts and other instruments of a commercial nature."[19] Story protected the bill of exchange, an important way to move capital at the time and further established commerce as a federal power. Story's option, though written late in his time on the Taney Court, is most comparable to those opinions of the earlier Marshall Court. Story's preference for federal common law prized federal authority over state authority and the decisions of judges over state legislatures. Story's opinion, like many of those in his time with Marshall, sought to build a strong Union. Integral to the creation of a more centralized state was federal regulation of commerce. Story viewed his own legal science as a more appropriate guiding for commercial regulation than state legislatures.

In 1829 he moved from Salem to Cambridge and became the first Dane Professor of Law at Harvard University, meeting with remarkable success as a teacher and winning the affection of his students, who had the benefit of learning from a sitting Supreme Court justice. He was a prolific writer, publishing many reviews and magazine articles, delivering orations on public occasions, and publishing books on legal subjects which won high praise on both sides of the Atlantic. Among Story's works of this period one of the most important is the Justice's Commentaries on the Constitution. The commentaries are divided into three sections, the first two concerning the colonial origins of the confederation and revolution, and the final section concerns the origins of the Constitution. Story's Commentaries encapsulate and expound his ideology. Within his Commentaries Story in particular, attacks notions of state sovereignty. Even at this moment when his time on the Court was drawing towards a close, Story remained concerned with the welfare of the Union. His guide to the Constitution stressed the sovereignty of the people rather than the states, and extensively attacked those elements, i.e. southern sovereignty advocates, that Story felt could destabilize the Union. Story's Commentaries summarize much of the Justice's philosophy and demonstrate how Story, sought to use his work off the bench to continue to foster popular sovereignty over state sovereignty.[20] Finally, Story's philosophy is made clear through the numerous references to Marshall, to whom the work is dedicated.

Significance

Justice Story remains one of the most significant figures in early American constitutional history. Of the many justices of the Marshall Court, only the chief justice himself wrote more opinions than Story. In the 33 years that Story sat on the Court, he would transition from being an ally of Marshall to the last of an old race. Joseph Story, throughout his time on the Marshall and Taney courts, championed the notion of legal science. He believed that the Union could be made stronger through the proper application of law, in particular proper application necessitated uniformity of application.[21] Consequently, federal control and judicial oversight were important tools in order to craft a more centralized Union. Story was in many respects a creature of New England; however, his chief aim was the creation of a strong Union. Consequently, several of his opinions, such as Prigg, emerge as efforts to protect the Union, despite some of the distasteful consequences. Justice Story's jurisprudence stressed the importance of nationalism through economic centralization and judicial review. While aspects of his jurisprudence would fall into the minority with the rise of Jackson, he continued to guide the Constitutional dialogue through cases like Prigg and Swift.[22]

Works

Justice Story was one of the most successful American authors of the first half of the 19th century. "By the time he turned 65, on September 18, 1844, he earned $10,000 a year from his book royalties. At this point his salary as Associate Justice was $4,500."[23]

Among his publications are:

He also edited several standard legal works. His Miscellaneous Writings, first published in 1835, appeared in an enlarged edition in 1851.

The Life and Letters of Joseph Story (1851) edited by his son William Wetmore Story was published in two volumes: Volume I and Volume II

Story contributed articles (in full, and or as part of larger articles) to The Encyclopedia Americana including this article Death, Punishment of. William Wetmore Story in The Life and Letters of Joseph Story, Volume 2, listed the articles Joseph Story wrote for The Encyclopedia Americana.":[24] Common Law, Congress of the United States, Conquest, Contracts, Corpus Delicti, Courts of England and the United States, Criminal Law,(Story's contribution begins at "To the preceding article....") Death, Punishment of, Domicil, Equity, Evidence, Jury, Lien, Law, Legislation, and Codes, (Story's contribution begins on p. 581.) Natural Law, Nations, Law of, Prize, and Usury. Story is sometimes identified as an "eminent American jurist" by the editors when he is a joint author of an article. See the Law, Legislation, and Codes article for an example.

Decisions

The Amistad. Reports of Cases in the Supreme Court of the United States 40 U.S. 518; 10 L. Ed. 826

Gallison's Reports. Reports of Cases in the Circuit Court of the United States for the First Circuit 2d ed. With additional Notes and References. By John Gallison. 2 vols. Boston, 1845. Vol 1 Vol 2

Mason's Reports. Reports of Cases in the Circuit Court of the United States for the First Circuit, from 1816 to 1830. By William P. Mason. 5 vols. Boston, 1819-31. Vol 5

Sumner's Reports. Reports of Cases argued and determined in the Circuit Court of the United States for the First Circuit. By Charles Sumner. 3 vols. Boston, 1836-40.

Story's Reports. Reports of Cases argued and determined in the Circuit Court of the United States for the First Circuit. By W. W. Story. 3 vols. Boston, 1842-47 Vol 3

"These volumes contain all the decisions of Mr. Justice Story on his Circuit. The decisions relate particularly to questions of Equity and Admiralty, and are of great practical value."[25]

Death and legacy

Justice Story spoke at the dedication ceremony for Mount Auburn Cemetery in 1831, which set the model for dozens of subsequent addresses over the next few decades. It also helped spark the "rural cemetery" movement and to link that movement to the development of the republic. Story emphasized the ways that rural cemeteries contributed to an ordered and well-regulated republic of law.[26] Upon his death in 1845, he was buried there "as are scores of America's celebrated political, literary, religious, and military leaders. His grave is marked by a piece of sepulchral statuary executed by his son, William Wetmore Story."[27]

Story County, Iowa was named in his honor, as was Story Hall, a dormitory at Harvard Law School, and the DePaul University College of Law chapter of the legal fraternity, Phi Alpha Delta and Story Grammar School, the town of Marblehead's first modern graded school.

Quotations by Story

On the Supreme Court's authority over state courts in civil matters of federal law (Martin v. Hunter's Lessee, 14 U.S. 304 (1816)):

The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.

On patent law (Title 35 of the United States Code), specifically regarding the patentability of inventions and the granting of patents (Lowell v. Lewis, 1 Mason. 182; 1 Robb, Pat. Cas. 131 Circuit Court, D. Massachusetts. May Term. 1817.):

Joseph Story towards the end of his life.
Joseph Story towards the end of his life.
The patent act uses the phrase 'useful invention' merely incidentally. . . . All that the law requires is, that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society. The word 'useful,' therefore, is incorporated into the act in contradistinction to mischievous or immoral. For instance, a new invention to poison people, or to promote debauchery, or to facilitate private assassination, is not a patentable invention. But if the invention steers wide of these objections, whether it be more or less useful is a circumstance very material to the interests of the patentee, but of no importance to the public. If it be not so extensively useful, it will silently sink into contempt and disregard.[28]

On the subject of church and state:

... Article VI, paragraph 3 of the U.S. Constitution declares, that 'no religious test shall ever be required as a qualification to any office or public trust under the United States.' This clause is not introduced merely for the purpose of satisfying the scruples of many persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher objective: to cut off for ever every pretence of any alliance between church and state in the national government.[29]
The real object of the First Amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any, which should be found to disgrace the pages of foreign annals. Apostacy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.[30]
Thus, the whole power over the subject of religion is left exclusively to the state government, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.[31]

On the Second Amendment:

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic since it offers a strong moral check against the usurpation and arbitrary power of rulers and will generally even if these are successful the first instance enable the people to resist and triumph over them. And yet though this truth would seem so clear and the importance of a well regulated militia would seem so undeniable it cannot be disguised that among the American people there is a growing indifference to any system of militia discipline and a disposition from a sense of its burthens to be rid of all regulations. How it is practicable to keep the people duly armed without some organization it is difficult to see. There is certainly no small danger that indifference may lead to disgust and disgust to contempt and thus gradually undermine all the protection intended by this clause of our national bill of rights.[32]

Notes

  1. ↑ David Brion Davis, Antebellum American culture (1997), pp. 14-15
  2. ↑ Newmyer, p. 4
  3. ↑ Presser, p. 526
  4. ↑ Dunne, p. 32
  5. ↑ Newmyer, pp. 7-8
  6. ↑ Friedman, p. 254
  7. ↑ Newmyer, p. 21
  8. ↑ Dunne, p. 23
  9. ↑ Newmyer, p. 27
  10. ↑ Dunne, p. 26
  11. ↑ "Book of Members, 1780–2010: Chapter S" (PDF). American Academy of Arts and Sciences. Retrieved September 8, 2016.
  12. ↑ American Antiquarian Society Members Directory
  13. ↑ Dunbar, B. (1987). Members and Officers of the American Antiquarian Society. Worcester: American Antiquarian Society.
  14. ↑ Martin v. Hunter's Lessee, 14 U.S. 304 (1816) 325.
  15. ↑ Martin v. Hunter's Lessee, 14 U.S. 304 (1816) 341.
  16. ↑ Proprietors of the Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 402 (1837) 598.
  17. ↑ Prigg v. Pennsylvania, 41 U.S. 539 (1842) 35.
  18. ↑ H. Robert Baker, "A Better Story in Prigg v. Pennsylvania?," Journal of Supreme Court History Vol. 39 (2014) 186.
  19. ↑ Swift v. Tyson, 41 U.S. 1 (1842) 2.
  20. ↑ R. Kent Newmeyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985)
  21. ↑ R. Kent Newmeyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985)
  22. ↑ Melvin Urofsky, The Supreme Court Justices: A Biographical Dictionary (New York: Garland Publishing, 1994)
  23. ↑ Rotunda & Nowak "Introduction" to Story's Commentaries on the Constitution of the United States, p. xxiv, Reprint Edition, Carolina Academic Press, 1987.
  24. ↑ Story, Life and Letters, Vol 2 pp. 27-28, Boston, 1851.
  25. ↑ Story, Life and Letters, Vol. 2 p. 665, Boston, 1851.
  26. ↑ Alfred L. Brophy, "These Great and Beautiful Republics of the Dead": Public Constitutionalism and the Antebellum Cemetery
  27. ↑ Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17 - 41 (Feb 19, 2008), University of Alabama.
  28. ↑ Lowell v. Lewis, 15 F. Cas. 1019, 1817 U.S. App. LEXIS 169 (C.C.D. Mass. 1817).
  29. ↑ Story, Joseph (1833) Commentaries on the Constitution of the United States. Boston: Hilliard, Gray and Company. Cambridge: Brown, Shattuck, and Co. Volume III, p. 705, §1841.
  30. ↑ Story, Joseph (1833) Commentaries on the Constitution of the United States. Boston: Hilliard, Gray and Company. Cambridge: Brown, Shattuck, and Co. Volume III, page 728, §1871.
  31. ↑ Story, Joseph (1858) Commentaries on the Constitution of the United States. Boston: Hilliard, Gray and Company. Cambridge: Brown, Shattuck, and Co. Third Edition, Volume II, p. 667, §1879.
  32. ↑ Story, Joseph (1833) Commentaries on the Constitution of the United States. Boston: Hilliard, Gray and Company. Cambridge: Brown, Shattuck, and Co. Volume III, page 746–747, §1890.

References

Further reading

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U.S. House of Representatives
Preceded by
Jacob Crowninshield		 Member of the U.S. House of Representatives
from Massachusetts's 2nd congressional district
1808–1809 		Succeeded by
Benjamin Pickman
Legal offices
Preceded by
William Cushing		 Associate Justice of the Supreme Court of the United States
1811–1845 		Succeeded by
Levi Woodbury
 
Supreme Court of the United States
The Marshall Court
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Chief Justice: Roger Brooke Taney (1836–1864)
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1838–1841:
1842–1843:
1843–1844:
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