In Stephen Vincent Benét’s short story, “The Devil and Daniel Webster,” the Old Deluder sues to reclaim the soul of Jabez Stone. Beelzebub did not know, however, that Mr. Stone had retained Daniel Webster as his attorney. After a powerful and tactically brilliant performance, Daniel Webster convinces the jury of condemned souls to side with Stone. Despite Lucifer having the law on his side, the jury noted how “even the damned may salute the eloquence of Mr. Webster.”
Although Webster once possessed a towering reputation—the “Goliath of the North” one Northern newspaper called him—he is nearly forgotten today. Those who remember him often share Benet’s view of the New Englander: learned, patriotic, and a master orator. This common perception overlooks how Webster was a master of the law first and gifted orator second. Beyond occasional references in works on the Marshall court or relegated to the sidelines in political and biographical treatments, Webster’s role as a constitutional litigator and political thinker goes relatively unnoticed.
Peter Charles Hoffer’s new book will change that. Published in the famed American Political Thought series by the University Press of Kansas, Daniel Webster and the Unfinished Constitution argues that Webster dedicated his legal and political career as well as his constitutional thought to completing what Hoffer calls the “unfinished Constitution.” As Hoffer convincingly reveals, Webster’s attempts to complete the Constitution did not occur in legislative halls. Rather, they emerged in his winning arguments in some of the most important Supreme Court cases in American history. That scholars have overlooked Webster’s attempt to complete the Founders’ work and the significant influence over American constitutionalism should not be surprising. As Hoffer notes, “novelty and vision ha[ve] gone to the justice rather than the advocate,” and Webster is no different. His sizable contributions to American constitutional development percolated through “the opinions of Chief Justice John Marshall, and, to a much lesser extent, Chief Justice Roger Taney.”
Webster’s Forgotten Influence
As an intellectual biography of Webster, Hoffer follows the chronology of its subject’s life, starting with a young Webster’s legal career and ending with his clash with John C. Calhoun over the Compromise of 1850. The chapters in between focus on the major constitutional episodes of the New Englander’s career and are the real heart of the book. Hoffer devotes separate chapters to Dartmouth v. Woodward, McCulloch v. Maryland, Gibbons v. Ogden, the Webster-Hayne Debates of 1830, and the Charles River Bridge Case, as well as to one focusing on Webster’s important tenure as Secretary of State.
For each case, Hoffer explores its legal and political backgrounds, Webster’s preparation for the case, and both counsels’ arguments before the Court. Throughout, he offers detailed explanations of technical legal terms and concepts that unfamiliar readers will find immensely helpful. It is when he examines the Court’s opinion that Webster’s underappreciated importance as a constitutional thinker emerges. not only did Webster’s arguments hone his extraordinary oratorical skills, but many of the most quotable and repeated phrases of John Marshall’s career were paraphrases or exact quotes first uttered by Webster. For example, Marshall borrowed from Webster the language he used for the impairing of the obligations of contracts, the enshrining of implied powers via the necessary and proper clause to carry out sovereign authority, and the definition of commerce. Marshall’s famous dictum in McCulloch that “the power to tax is the power to destroy” came directly from Webster’s oral argument. The Constitution as the “great outline” is also an idea of Webster’s that found its way into Marshall’s opinion. One could go on, but the point is clear. Webster, just as much as Marshall, shaped the development of American constitutional history and law.
Hoffer maintains that Webster’s constitutionalism can only be understood by first acknowledging the “unfinished” nature of the Constitution. Emerging in recent years as a shibboleth amongst some scholars, such as Jonathan Gienapp, the argument for the “unfinished,” or “unfixed,” Constitution asserts that the language and principles underpinning the Constitution remain permanently unfixed. Therefore, “it becomes the job of each generation of jurists” to define what the Constitution means. Hoffer puts it this way in the last paragraph of the book:
. . . the Constitution remained unfinished . . . the incompleteness of the Constitution is a guarantor of the continued capacity for growth. A completed constitution cannot change. It is fixed in time. But the times change, values change, and the needs of a nation and people change. A vibrant Constitution accommodates these changes. There is always the amending process, and amendments have changed the Constitution greatly, but seeing the need for an amendment and implementing is much like reinterpreting the document as it stands—they require a recognition that the Constitution is incomplete. Amendment and reinterpretation are the lifeblood of our constitutionalism. The unfinished Constitution ensures the rule of law.
In short, the idea of the unfinished constitution is a scholarly euphemism for the living constitution.
Hoffer insists that Webster’s constitutionalism attempted to answer the “three great questions of the incomplete Constitution:” federalism, the “boundary between public interest and private right,” and the relationship between law and politics during the early republic. His answers, moreover, advanced a nationalist reading of the Constitution. Webster did not seek to “destroy the sovereignty of New Hampshire or Massachusetts any more than that of Carolina. He simply wanted the federal government to have absolute control of the powers explicitly granted to it.” The states retained elements of sovereignty, but the Supremacy Clause “restrained” their actions. Thus, as percolated through the writings of John Marshall, Webster answered the question of federalism by affixing broad Congressional authority over contracts, interstate commerce, and a generous reading of the Necessary and Proper clause while still maintaining a union of states.
This nationalist federalism naturally affected how Webster answered the unfinished question over the line between public interests and private rights. Webster believed the federal constitution, particularly its prohibition against impairing the obligation of contracts, protected the individual property rights against the invasions of partisan state legislatures often bent on fulling momentary wishes of the public at the expense of enshrined rights. Finally, and to Hoffer, most importantly, the protection of private rights could not come from any political body, whether state or federal—political self-interest proved too strong. Instead, Webster believed the Supreme Court, with its being more removed from political passions, bore the responsibility of protecting the rights of individuals and explaining the nature of the Constitution and boundaries of federal power. With these arrangements finally fleshed out in constitutional jurisprudence, Webster believed union, liberty, and the rule of law would thrive.
An Incomplete Constitution?
Had Hoffer stopped with his examination of Webster’s constitutional principles and the underappreciated degree of influence upon constitutional law and jurisprudence, the book would have been a masterclass of historical scholarship. Hoffer more than establishes that Webster proved a much more critical constitutional thinker than previous scholarship has admitted and influenced constitutional law in ways that scholars have neglected. Alas, his argument that Webster viewed his legal arguments (and success) as completing the “three great questions of the incomplete Constitution” falls flat. It smacks too much of injecting contemporary academic constitutional thought into the mind of Webster.
Even as he appreciates the great lawyer’s efforts, Hoffer concludes that Webster “could no more finish it than anyone in his generation” because “asking courts to do what cannot be done is a vain enterprise.” Yet, Hoffer does not prove that Webster himself ever believed he was trying to fix undefined constitutional boundaries. Instead, his thorough research suggests that Webster’s court and Senate orations, which he filled with historical examples and allusions, sought to convince his audience that his nationalist interpretation of the Constitution, and not those defending state sovereignty, became fixed at the moment of the Constitution’s creation. Webster believed he defended the Constitution as it was rather than as it wanted it to be. That Hoffer views Webster as having failed in his attempt to affix a nationalist interpretation of the Constitution (which is debatable), may have more to do with the historical, political, and constitutional strength of Jeffersonian constitutionalism than it does with the modern notion that one cannot fix what is supposedly unfixable.
Finally, the argument for an unfixed Constitution is a curious one. The book’s argument hinges on accepting it as fact. To aid readers, Hoffer offers the metaphor of the surveyor, in which the Constitution is a textual landscape and judges are the surveyors. Landmarks such as the Contracts Clause, the Necessary and Proper Clause, and the principle of federalism dot that textual terrain. Between those landmarks will be unmarked spaces that require mapping out. It is the role of the surveyor, the Supreme Court, to map out that landscape.
But this metaphor misses the mark. A surveyor cannot claim to have discovered previously unknown tracts of land on already established terrain. He must examine that terrain and its landmarks as he inherited it; he cannot transmogrify the ground to fit contemporary desires. Nor can the surveyor claim that a textual landscape is something that it is not; a forest is not an ocean because the owners now want oceanfront property in the middle of the woodlands. Nor can he alter landmarks if they are in the way. Landmarks, by definition, are “fixed” positions. Surveyors merely observe, apply, and occasionally clarify—not alter or redraw—the location of boundary lines in the pre-existing territory. Suppose surveyors could fundamentally change the landscape every time they surveyed land. In that case, that land is no longer stable, and it becomes difficult, if not impossible, to live prosperously on that land.
The same is true for the Constitution. Even if elements of the Constitution require mapping out, or “liquidation,” as Madison called it in Federalist 37, this does not mean the entire edifice remains fluid or subject to constant change by courts. Nor does it mean that judges—Hoffer’s surveyors—can alter the Constitutional terrain or landmarks because times have changed. That is arbitrariness, the opposite of order, liberty, and the rule of law. A fixed constitution, which solidified the predominance of its meaning and intention at its adoption, provides the stability demanded by the rule of law. Nor are amendments a sign that the Constitution is incomplete. Using Hoffer’s metaphor, amendments are part of the Constitutional terrain. Whereas surveyor-judges have no legitimate authority to change the terrain or alter the landmarks, amendments offer the landowners, the people through their congressional and state legislatures, to rearrange their property as they best see fit.
Readers will need to ignore Hoffer’s use of the past to defend modern constitutional theory. If they do, then Daniel Webster and the Unfinished Constitution should convince them to move beyond Webster the orator and consider him one of the Early Republic’s most important constitutional thinkers. Overlooking that issue, however, might be as difficult as beating the devil in court.