Sitting on the Supreme Court, which before the Civil War was located in the Capitol one floor below the Senate Chamber, Justice Joseph Story was well placed to observe the upper house during a major transformation in its national stature. In the decade that followed the Missouri Compromise of 1820, the Senate moved out of the shadow of the House of Representatives. For the first time since its earliest years, the Senate attracted the nation’s outstanding political talent to its membership. In 1833 Justice Story published a three-volume analysis of the origins and development of the United States Constitution entitled Commentaries on the Constitution of the United States.
In 1811, when Joseph Story was only 32, President James Madison nominated him to serve as an associate justice on the U.S. Supreme Court. Quickly confirmed, Storywhose bald head and glasses made him look much olderbecame the youngest person ever to join the high court. The Massachusetts native served on that body for 34 years, until his death in 1845, and delivered more majority opinions than any other justice except his fellow proponent of constitutional nationalism, Chief Justice John Marshall (1801-1835).
Story developed a close intellectual bond with his home-state senator Daniel Webster in the late 1820s. Webster helped Story understand the fine points of the Senate’s operations, while Story assisted Webster in shaping legal arguments for his major speeches, including his classic “Second Reply” to South Carolina senator Robert Hayne (1830). That speech, aimed at Vice President John C. Calhoun’s theory that a state could “nullify” any federal law it considered in violation of its sovereignty, reflected Story’s views on the supremacy of the Union over the states, with the Supreme Court as the ultimate arbiter for matters of constitutional interpretation
A year earlier, in 1829, Story had accepted an appointment specially created for him at Harvard University as the Dane Professor of Law. A modern biographer identified him as “the central figure of the antebellum Harvard Law School; the treatises he wrote in carrying out his professorial duties played a seminal role in the creation of a sophisticated, genuinely American jurisprudence.” The most important among those treatises was his Commentaries on the Constitution.
Considering the Senate as a vital forum for debating conflicting constitutional interpretations, Story paid special attention to its powers and prerogatives relative to the government’s executive and judicial branches, and to its competition with the House of Representatives. Story’s Commentaries provides a wealth of constitutional explanation about the Senate. It mines fundamental sources, including the journal of the 1787 Constitutional Convention, notes of convention participants (except those of James Madison, which remained closed until 1840, but appeared in later editions and abridgments of Commentaries), the Federalist Papers, proceedings of individual state ratifying conventions, and precedents established within the Senate during its first 40 years.
[Division of legislative power into two houses] is of little or no intrinsic value, unless it is so organized, that each can operate, as a real check upon undue and rash legislation. If each [chamber] is substantially framed upon the same plan, the advantages of the division are shadowy and imaginative; the visions and speculations of the brain, and not the walking thoughts of statesmen, or patriots. It may be safely asserted, that for all the purposes of liberty, and security, of state laws, and of solid institutions, of personal rights, and of the protection of property, a single branch is quite as good, as two, if their composition is the same, and their spirits and impulses the same. Each will act, as the other does; and each will be led by the same common influence of ambition, or intrigue, or passion, to the same disregard of the public interests, and the same indifference to, and prostration of private rights. It will only be a duplication of the evils of oppression and rashness, with a duplication of obstructions to effective redress. In this view, the organization of the senate becomes of inestimable value. It represents the voice, not of a district, but of a state; not of one state, but of all; not of the interest of one state, but of all; not of the chosen pursuits of a predominant population in one state, but of all the pursuits in all of the states. . . .
No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation. No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states. The interest, and passions, and prejudices of a district are thus checked by the influence of the whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation. It may be thought, that this complicated system of checks may operate, in some instances, injuriously, as well as beneficially. But if it should occasionally work inequally, or injuriously, its general operation will be salutary and useful. The disease most incident to free governments is the facility and excess of law-making; and while it never can be the permanent interest of either branch to interpose any undue restraint upon the exercise of all fit legislation, a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency. Even reforms, to be safe, must, in general, be slow; and there can be little danger, that public opinion will not sufficiently stimulate all public bodies to changes, which are at once desirable, and politic. . . .
. . . It has not only been demonstrated, that the senate, in its actual organization, is well adapted to the exigencies of the nation; but that it is a most important and valuable part of the system, and the real balance-wheel, which adjusts, and regulates its movements. . . .1
In his analysis of relations between the Senate and House, Story praised the harmony with which both bodies worked. “While the house of representatives has gone on increasing, and deepening its influence with the people with an irresistible power, the senate has, at all times, felt the impulses of the popular will, and has never been found to resist any solid improvements. Let it be added, that it has given a dignity, a solidity, and an enlightened spirit to the operations of the government, which have maintained respect abroad, and confidence at home.” 2
Story also devoted nearly half of his Senate chapter to that body’s conduct of impeachment trials. As he drafted this portion, the Senate was sitting as a court of impeachment in the trial of Judge James Peck, who served on the U.S. District Court for Missouri. The Senate ultimately dismissed all charges against Peck, thereby reversing the action of the House of Representatives for the third time in the four cases that had come before it. In the florid style that characterizes his entire work, Story explained why the authors of the Constitution considered the Senate, rather than the Supreme Court, to be the more appropriate forum for conducting impeachment trials. He observed that the Senate’s wise and judicious management of these trials inspired broad confidence throughout the nation once the passions of the respective cases had cooled. “No reproach has ever reached the Senate for its unfaithful discharge of these high functions; and the voice of a state has rarely, if ever, displaced a single senator for his vote on such an occasion. What more could be asked in the progress of any government? What more could experience produce to justify confidence in the institution?”3
Story’s Commentaries became a standard part of the curriculum in American law schools throughout the remainder of the 19th century. The Civil War confirmed Story’s thesis of constitutional nationalism against theories of state sovereignty. Generations of lawyers, including many who went on to become United States senators, would credit Joseph Story for helping to shape their understanding of the idea of the United States Senate.