Sunday, December 17, 2006

Justice Story Says "Ouch!"

“To prove their contentions [that the first Continental Congress was a sovereign body, and that it represented the people of the United States as a whole, not the people of the several states as represented in their state governments] the Northerners [during the nineteenth century] cited such documents as the Declaration of Independence and the preamble to the Constitution of 1787. Their method of proof was to state their contention, or reiterate it, and by use of italics to place undue emphasis on the portions of the documents which seemed to prove their arguments. [fn2] This is essentially the technique of argument used by small boys and would be unworthy of consideration had it not been so effective in shaping certain ideas which have profoundly influenced the interpretation of American history.”

The first work cited in footnote 2 as an example of a work containing such a “technique of argument used by small boys” is no less than Joseph Story’s Commentaries on the Constitution of the United States (originally published 1833). Associate Justice Joseph Story, ironically appointed to the Supreme Court by President James Madison in 1811, was a leading member of the Marshall (and post-Marshall) Court until his death in 1845 and a professor of law at Harvard. His three-volume Commentaries, although little read today (except by legal historians), was regarded as the leading treatise on constitutional law during most of the Nineteenth Century.

The source of the quote? The highly-regarded and often pungent and highly amusing Merrill Jensen, in his book The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution 1774-1781 (University of Wisconsin Press 1976) (originally published 1940) at 162-63.

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