Foreword

In 1836, after having served nearly twenty-five years on the Supreme Court of the United States, Justice Joseph Story remarked:

If I do not live otherwise to posterity, I shall at all events live in my children in the law. While that endures I am content to be known through my pupils.

Despite his incomparable achievements as a jurist, an advocate, and a politician, Story plainly believed that his most enduring legacy would come from his work as a legal educator. It is a privilege for me to be associated with the continued advancement of this legacy through the republication of this treatise on our Constitution, a study Story specifically designed for lay readers and as a text for the high school students of his day.

Although this work will undoubtedly command respect from every generation that values our constitutional democracy, this republication is particularly timely for two reasons. First, we are preparing to celebrate the Bicentennial of our basic charter, described by William Gladstone in 1878 as "the most wonderful work ever struck off at a given time by the brain and purpose of man." It is entirely fitting that Justice Story should play a significant role in educating us as to itsmeaning and its genius. He was a remarkably prolific writer, producing scholarly commentaries not only on the Constitution but on eight other areas of the law (agency, bailments, bills of exchange, conflict of laws, equity jurisprudence, equity pleadings, partnerships, and promissory notes), as well as countless other essays, articles, and reviews. Not content with edifying only those within his own profession, Story prepared this Familiar Exposition of the Constitution in 1840 by revising a lengthier treatise he had written for constitutional scholars. That lengthier treatise, Commentaries on the Constitution of the United States (1833), remains today as one of the most thorough expositions ever on the substance of our constitutional law. Few things would have pleased him more than to have the abridged treatise widely circulated to enhance our knowledge and appreciation of the Constitution on its 200th anniversary.

Second, a republication of this volume is especially appropriate now as we inaugurate a newly constituted Supreme Court under the leadership of Chief Justice William H. Rehnquist. On the first Monday of October 1986, the Supreme Court officially began the first term of what future historians will call the Rehnquist Court. We stand at the threshold of a promising era, one that I hope will see a return to the rigorous approach to constitutional interpretation espoused by Story in this book, as well as in his lengthier Commentaries. As Story makes plain, the Constitution is our fundamental law, and federal judges are obliged to apply its provisions in accordance with the plain meaning of their terms as understood by the society that ratified them. His eloquent statement of this theory deserves to be quoted at length:

We shall treat [our Constitution], not as a mere compact, or league, or confederacy, existing at the mere will of any one or more of the States, during their good pleasure; but, (as it purports on its face to be,) as a Constitution of Government, framed and adopted by the people of the United States, and obligatory upon all the States, until it is altered, amended, or abolished by the people, in the manner pointedout in the instrument itself. It is to be interpreted, as all other solemn instruments are, by endeavoring to ascertain the true sense and meaning of all the terms; and we are neither to narrow them, nor to enlarge them, by straining them from their just and natural import, for the purpose of adding to, or diminishing its powers, or bending them to any favorite theory or dogma of party. It is the language of the people, to be judged of according to common sense, and not by mere theoretical reasoning. It is not an instrument for the mere private interpretation of any particular men. The people have established it and spoken their will; and their will, thus promulgated, is to be obeyed as the supreme law.

Why should we continue to adhere to the Constitution as our fundamental law? Justice Story provides the answer on the title page of these commentaries by quoting from George Washington’s Farewell Address. The Constitution, and the government it establishes, Washington stated, "has a just claim to [our] confidence and respect" because it is

the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers uniting security with energy, and containing, within itself, a provision for its own amendment * * *

In other words, the Constitution is fundamental law because it is our law, law established by "we the people," law that permits social progress while preventing political tyranny, and law that we can adjust through amendment under the Fifth Article as time and experience demand.

Unfortunately, several modern jurists and scholars have rejected Justice Story’s vision of the Constitution, and would probably find the very notion of a "commentary" on the meaning of the Constitution somewhat archaic, perhaps even quaint. They view constitutional provisions not as having a fixed meaning that can be identified and applied, but as nothing more than vague generalities and empty vessels that can bemade to carry the political values of the judges who interpret them. They probably do not see the value in an interpretive guide to a text that they believe has so little content.

Justice Story knew better. He recognized that departure from the text of the Constitution as originally understood would permit unelected and unaccountable, life-tenured federal judges to impose their personal values on the rest of us, and would ultimately result in judicial tyranny. Because the Constitution expresses the will of the people, only fidelity to its original meaning ensures that our country will remain self-governing. If a judge departs from the original meaning—if he acts solely on his personal notion of the public good or wise policy—he usurps powers not given to him by the people through their Constitution. He is no longer interpreting the Constitution, but amending it in a way contrary to the amendment process set forth in the document itself.

Story realized that, if the Constitution is to remain our basic law, all citizens (not just the lawyers) must understand its provisions and protect against its infringement by those who would disregard it. Accordingly, he produced this treatise, dedicated to the people of his home state of Massachusetts, with the hope of inspiring "a more warm and devoted attachment to the National Union, and a more deep and firm love of the National Constitution." The essential role of an educated citizenry in ensuring fidelity to our Constitution is emphasized in his concluding remarks, where he warns that our constitutional democracy might "perish in an hour, by the folly, or corruption, or negligence of its only keepers, THE PEOPLE."

Perhaps no one was better suited to the task of producing an enduring commentary on our Constitution than Justice story. Born in 1779, three years after the birth of our republic, his life was imbued with the ideals of the American Revolution. His father participated in the Boston Tea Party, and fought at Concord, Lexington, and Bunker Hill. As one of eighteen children, Story’s boyhood must have been filled with inspiring conversation and speculation as to the fate of our new country. His intellectual prowess manifested itself at an early age. Largely through self-study, he secured early enrollment at Harvard,graduating second in his class when he was just eighteen years old.

In 1810, Story was thrust into national prominence when he vindicated the claims of certain Massachusetts land investors before the Supreme Court in the landmark case of Fletcher v. Peck. The famous "Yazoo" lands at issue in that case had been sold by the Georgia legislature, and then subsequently purchased by Story’s clients. When the original grant was challenged as having been procured through bribery, the Georgia legislature attempted to nullify it. But Story convinced the Supreme Court that his clients’ property rights were protected against state infringement by the Contract Clause of the Constitution. His role in Fletcher might well have contributed to his understanding that economic liberty and individual liberty are inextricably linked, a belief to which he adhered throughout his life.

The following year, Story became the youngest person ever to serve on our nation’s highest court when, at the age of 32, he was confirmed as an Associate Justice. While on the Court, he encountered perhaps the most important influence on his constitutional jurisprudence, the phenomenal mind of Chief Justice John Marshall. The two quickly forged an abiding friendship, and more often than not they stood united on the great constitutional issues of their day. It is to Marshall that Story’s unabridged work on the Constitution is dedicated, and it was Marshall—together with The Federalist—that Story described as the "two great sources" for his constitutional commentaries.

Justice Story’s fidelity to the text of the Constitution is perhaps best revealed by examining his greatest judicial pronouncement, his opinion in Martin v. Hunter’s Lessee (1816). In that case, the Court upheld the legitimacy of Supreme Court review of state court decisions that interpret federal law. Story began his opinion by insisting that the Constitution, "like every other grant [of power], is to have a reasonable construction, according to the import of its terms." Adhering strictly to the text, his interpretation was not cramped. "The words," he wrote, "are to be taken in their natural and obvious sense, andnot in a sense unreasonably restricted or enlarged." He recognized that "[t]he constitution unavoidably deals in general language’’ and that "where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication." In Hunter’s Lessee, Story sought to ensure that the Constitution would be viewed as the supreme national law of the people, and he established the Supreme Court as the final arbiter of federal law over and above state tribunals. But he demanded that federal judges interpret the law as established by the people through their representatives, not make new law by enforcing their own views as to how the country should be governed.

Much more could be said regarding Story’s extraordinary legal career, but the reader’s time would be better spent studying his writings and the Constitution itself. Story’s lengthier Commentaries on the Constitution ran to five editions and was translated into French, Spanish, and German. Through this republication of the abridged version for the general public, Story will continue to "inspire the rising generation with a more ardent love of their country, an unquenchable thirst for liberty, and a profound reverence for the Constitution and the Union," as he so fervently desired. We can hope that it will also lead to a return to the jurisprudence that Story knew is essential to our constitutional democracy. As we continue Justice story’s legacy as legal educator and constitutional scholar, let us keep in mind the admonition that concludes these commentaries:

Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.

Edwin Meese III