At Law & Liberty, Adam M. Carrington (Ashland Univ.): Common Law and National Identity. From the introduction:
Affirmative action, abortion, and LGBTQ rights: Americans debate the approach we should take to these issues along Constitutional, policy, and moral lines. Each matter holds distinct elements. However, when you strip the arguments for and against to their foundation, you find a common root. They all concern the meaning of the assertion, made in the Declaration of Independence, that “all men are created equal.”
This example displays a broader point. First principles wear many clothes. But they stably remain underneath, giving the essential form to the surface issue.
Benjamin Clark’s Contending for American Nationhood understands this relationship. The book primarily focuses on the debate in the Early Republic regarding the existence of a federal common law. But its main point concerns a more fundamental matter—the contest in that period over the origin and nature of the American nation. Clark highlights the federal common law debate as one suit of clothing, a manifestation of the broader, bigger argument over nationhood. In so doing, Clark’s discussion shows how much the question about American nationhood touches upon in our political history—and our political present.
The importance of this matter makes sense. It is hard to ask a more fundamental question than, “Who are you?” One’s principles, priorities, and a host of consequent issues flow from this inquiry. The same is as true of countries as it is of individuals or groups. Our understanding of the meaning of America says much about how we think and act as a political community.
Clark’s book looks at how these debates over nationhood played out in the first half of the nineteenth century. The book does so with a special emphasis on the writings of Joseph Story (born 1779), who served on the United States Supreme Court from 1812 until his death in 1845. Story was a powerful figure in this period, not only through his judicial decisions but in his teaching at his alma mater, Harvard. Moreover, Justice Story left a powerful legacy in his legal treatises, especially his three-volume Commentaries on the Constitution of the United States (1833), which might be second only to The Federalist Papers in its influence on the interpretation of our Constitution. Beyond these contributions, Story also made a sustained case for a federal common law as part of his broader view about American law and nationhood.
Regarding American nationhood, Clark lays out the two competing positions held during Story’s time. He describes these camps as adhering to either the “Compact Theory” or the “Nationalist Theory.” Both looked to America’s history to understand the nature of American nationhood. Their different answers to how America was formed resulted in distinct views of what America was.
And here is the book description from Amazon:
Contending for American Nationhood: Joseph Story and the Debate Over a Federal Common Law offers a study of one of the early republic’s fiercest legal debates, one of the Supreme Court’s most understudied jurists and constitutional theorists, and the enduring tension between two irreconcilable understandings of the American union. It explores the conflict between two competing theories of the American union in the early years of the republic: the Nationalist Theory, which posited that the union was the creation of the national American people, and the Compact Theory, which portrayed the union as a compact between the peoples of the several states who had each separately decided to join to form the union. Benjamin Clark employs this underlying debate as a framework for understanding the debate over federal common law in the late 18th and early 19th centuries. The book gives particular attention to the constitutional thought of Supreme Court Justice Joseph Story, examining how these two seemingly-separate issues—the federal common law question and the existence of American nationhood—came together in Story’s constitutional theory.
Posted at 6:02 AM