Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's Judicial Nationalism Author(s): Paul Finkelman and Joseph Story Reviewed work(s): Source: The Supreme Court Review, Vol. 1994 (1994), pp. 247-294 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/3109649 . Accessed: 18/09/2012 10:55 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to The Supreme Court Review. http://www.jstor.org PAUL FINKELMAN STORY TELLING ON THE SUPREME COURT: PRIGG v PENNSYLVANIA AND JUSTICE JOSEPH STORY'S JUDICIAL NATIONALISM Few scholarsdispute Justice Joseph Story's enormous significance forAmerican law. He was unquestionably"one of our greatest juristsand legal theorists."' His numerousCommentaries on various subjectsbecame fundamental textbooks and referencetools for a generationof lawyersand helpedcreate a nationallegal system. His vastlegal scholarship made him a "one-manWest Publication Company."2As a Harvardprofessor he helpedtrain an important segmentof theantebellum elite bar and, moreover,set the stage Paul Finkelmanis VisitingAssociate Professor of Law, Chicago-KentCollege of Law. AUTHOR'S NOTE: I thank Raymond O. Arsenault, Bruce Dudley, Charles Geyh, JamesO. Horton,Allison Lindsey,Michael McReynolds,Wayne Moore, SharleenNaka- moto,Emily Van Tassel, and PeterWallenstein for their input on thisarticle, and the staffs of the HarfordCounty Historical Society, the York CountyHistorical Society, the Mary- land Hall of Records,the Maryland Historical Society, and theState Archives of Pennsylva- nia for theirhelp. The researchfor this articlewas partiallyfunded by grantsfrom the National Endowmentfor the Humanities,the AmericanPhilosophical Society, and the HistoryDepartment of VirginiaTech. 1 Kent Newmyer,Supreme Court Justice Joseph Story: Statesman of the Old Republic 282 (Uni- versityof NorthCarolina Press, 1985). This does not,however, make him the most accurate judicial scholar.For a discussionof the weaknessof Story'sscholarship, see Alan Watson, JosephStory and theComity of Errors: A CaseStudy in theConflict of Laws (Universityof Georgia Press, 1992). 2 Newmyer,Justice Joseph Story (cited in note 1). ? 1995 by The Universityof Chicago. All rightsreserved. 0-226-36178-0/95/1994-0006$02.00 247 248 THE SUPREME COURT REVIEW [1994 forthe developmentof seriouslegal educationin America. He is on everyone'sall timehit paradeof SupremeCourt justices.3 Storywas somethingof a "lawyer's"justice, whose opinions,as well as his learnedtreatises, helped revolutionizeAmerican law. Most of his importantopinions involved technical issues of proce- dure or commerciallaw, ratherthan great issues of statecraft.For betteror worse, he spent most of his career on the bench with ChiefJustice John Marshall, who assignedmost decisions affecting major public policy issues to himself.4After Marshall's death, Storyusually faredno betterwhen it came to writingpolitically importantopinions. In his last decade on the bench, under Chief JusticeRoger B. Taney, Storyoften found himself in the minority on majorpolicy questions,s but was stillchosen to writethe opinion of the courtin major technicalcases, such as Swiftv Tyson,6the mostimportant procedure case of the nineteenthcentury.7 One criticalexception, where Story wrote a majorityopinion on an issue of politicsand statecraft,was Priggv Pennsylvania.8To understandStory, and mid-nineteenth-centurylaw and politics, one has to come to termswith Prigg. This is truewhether one likes Story,9dislikes him,"1 or is simply ambivalentabout him." In comingto termswith Story'sPrigg opinion, we are faced with a 3 A. Leon Higginbotham,An OpenLetter to Clarence Thomasfrom a FederalJudicial Colleague, 140 U Pa L Rev 1007,citing Albert P. Blausteinand Roy M. Mersky,The First One Hundred Justices:Statistical Studies in theSupreme Court of the United States 35-36 (ArchonBooks, 1978). SProfessorDavid Currie's iconoclasticstatement makes the point: "[T]hanks to John Marshall's insistenceon writingeverything himself, the Supreme Court was popularly knownas 'JohnMarshall and the Six Dwarfs.'" David Currie,The Most Insignificant Justice: A PreliminaryInquiry, 50 U Chi L Rev 466, 469 (1983). ' For example,Proprietors of theCharles River Bridge v Proprietorsof theWarren Bridge, 11 Peters(36 US) 420, 581 (1837) (Storydissenting). 6 16 Peters(41 US) 1 (1842). STony Freyer,Harmony and Dissonance:The Swiftand Erie Casesin AmericanFederalism (New York UniversityPress, 1981). WithoutSwift, first year procedureprofessors would be unable to subjectstudents to weeksof understandingthe Erie doctrine. See ErieRailroad Co v Tompkins,304 US 64 (1938). 8 16 Peters(41 US) 539 (1842). 9 ChristopherL. M. Eisgruber,Joseph Story, Slavery, and theNatural Law Foundationsof AmericanConstitutionalism, 55 U Chi L Rev 273 (1988). "0 RobertM. Cover,Justice Accused: Antislavery and theJudicial Process (Yale University Press, 1975); see more recentlyBarbara Holden-Smith,Lords of theLash, Loom, and Law: JusticeStory, Slavery and Priggv Pennsylvania,78 CornellL Rev 1086 (1993). " Newmyer,Justice Joseph Story (cited in note 1). 6] STORY AND SLAVERY 249 case in which an otherwisescholarly, judicious, and apparently humanejurist wrote an opinionthat was intellectuallydishonest, based on inaccuratehistorical analysis, judicially extreme when it need not have been, and inhumanein its immediateresults and in its long-termconsequences. Furthermore, we face an extreme proslaveryopinion written by a man who, at least on the surface, opposed slavery.12Moreover, in lookingat the aftermathof Prigg we findthat either Story, or his filiopietisticson, WilliamWetmore Story,sought to cast the decisionas subtlyantislavery, while the justicehimself was workinghard behind the scenesto help imple- mentthe proslaveryimplications of the decision.13 Story'sprimary goal in Priggwas to enhancethe power in the nationalgovernment. Story was willingto accomplishthis at the expenseof civil liberties,fundamental notions of due process,and acceptedconcepts of antebellumfederalism. In analyzingPrigg it is importantto rememberthat the national- izationof power in the 1840smeant strengthening southern slave- holders and their proslaverynorthern doughface allies.14 Story livedin a Union dominatedby slaveholdingpresidents,is a proslav- 12Holden-Smith, 78 CornellL Rev (citedin note 10), challengesthe conventional wisdom of Story'sopposition to slavery.I thinkit is clear the Storydisliked slavery and foundit morallyoffensive, the way virtuallyall northernersdid. However, this seems to have had littleaffect on his jurisprudenceafter the 1820s. 13See Storyto JohnMacpherson Berrien, April 29, 1842, in JohnMacpherson Berrien Papers, SouthernHistorical Collection, University of North Carolina (hereaftercited as Story to BerrienLetter [cited in note 131),quoted at lengthin James McClellan,Joseph Storyand theAmerican Constitution 262n-63n (Universityof OklahomaPress, 1971). This is discussedat note 23. 14The termwas an insultto describe"northern men with southern principles." In essence, a "doughface"had a face of dough that southernpoliticians shaped as they wished. "Doughface Democrats"were northernDemocrats who voted to supportproslavery posi- tions. 15 By 1842, when Story wrotePrigg, the United States had only had threenorthern presidents-all one-termpresidents-and only two-John Adams and JohnQuincy Ad- ams-had been even mildlyantislavery. Martin Van Buren, althougha New Yorker,was a classic "doughface."Six presidents(Washington, Jefferson, Madison, Monroe, Jackson, and Tyler)-including all fiveantebellum two-term presidents-had been slaveownersdur- ing theirterm of office;Harrison, a nativeof Virginia,had been a slaveownerfor much of his adult life, and only ceased owning slaves when he failed, as territorialgovernor of Indiana, to get Congressto allow slaveryin the old Northwest.On Harrison'sattempts to bringmake slaverylegal in the old Northwest,see Paul Finkelman,Evading the Ordinance: ThePersistence ofBondage in Indianaand Illinois,9 JEarly Republic 21-52 (1989), and Paul Finkelman,Slavery and theNorthwest Ordinance: A Studyin Ambiguity,6 JEarly Republic 343-70 (1986). 250 THE SUPREME COURT REVIEW [1994 ery Supreme Court,16and more oftenthan not a Congresscon- trolledby southernpoliticians." Similarly, states rights in antebel- lum Americaoften meant the right of northern states to freevisiting slaves,18to protectfree blacks fromkidnapping,19 to preventthe extraditionto the South of whites or blacks who helped slaves escape,20and eventhe right of northernersto interferein therendi- tion of fugitiveslaves, if it could be done underthe color of state law.21 Thus, we must not look at Story'snationalizing jurispru- dence throughthe lens of a late twentieth-centuryConstitution, withthree Civil War amendments(and variousother amendments and statutes)that allow or obligatethe national government to pro- tectcivil rightsand civil liberties.On the contrary,Story lived in an age when federalpower meant federal