Daniel Webster and the Unfinished Constitution by Peter Charles Hoffer

Abstract

Hoffer’s latest book provides a kind of constitutional biography of Daniel Webster, a prominent American politician of the first half of the nineteenth century, famed for his oratory. Hoffer focuses on Webster’s role as a leader of the Supreme Court bar, arguing that Webster’s legal advocacy generated a coherent and influential constitutional jurisprudence. He suggests, in effect, that Webster was often the brains behind Chief Justice John Marshall’s campaign to establish a Federalist interpretation of the Constitution, one that could constrain the movements for radical democracy and states’ rights from the 1810s to the 1830s.Hoffer identifies three constitutional “conundrums” that the founding generation bequeathed to Webster’s generation: (1) how to draw the line between federal and state authority (federalism), (2) how to keep politics and law separate, and (3) how to protect private rights of property while allowing government adequate authority to achieve its ends. This tripartite framework provides a fair enough entrée into Webster’s jurisprudence, as manifested in the four major Supreme Court cases that Hoffer addresses. But these three conundrums also overlapped, and they did not cover the whole ground of constitutional development. The future of slavery, for example, stands out as a major constitutional area only incompletely addressed in 1787 and likewise overlapping with Hoffer’s three areas. Nonetheless, Hoffer’s framework is helpful, even if it works less well for the three nonjudicial episodes that Hoffer tries to fit into the same narrative (the Webster–Robert Hayne debate of 1830 regarding states’ rights, Webster’s short term as Secretary of State from 1841 to 1843, and Webster’s defense of the 1850 Fugitive Slave Act).Hoffer’s account of Webster’s four most famous Supreme Court cases tells a familiar story. Over the course of five years, Webster argued, and the Court adopted, a characteristically Federalist jurisprudence in Dartmouth College v. Woodward (1819), McCulloch v. Maryland (1819), and Gibbons v. Ogden (1824), to each of which Hoffer gives a full chapter’s treatment. That jurisprudence had three components—stout defense of judicial authority (as against the constitutional claims of the so-called political branches); constitutionalization of judge-made, common-law protections for property rights (mostly by way of the Contracts Clause); and vindication of expansive national authority within a federal system. That story usually features Marshall as the dominant character, but Hoffer claims that Marshall’s opinions often just cribbed Webster’s arguments. The value in Hoffer’s claims is that the Court’s work was never that of a single, heroic chief justice but was drawn from many sources, including Webster’s advocacy. That said, Hoffer’s strongest claims for Webster’s influence go largely undemonstrated.More importantly, the whole exercise in apportioning credit for the jurisprudence of the time is a little old-fashioned, tending to slight the larger context that produced both Marshall’s and Webster’s contributions and exaggerating the power and coherence of their thinking. Hoffer gives short shrift to the common and forceful critiques of the Webster/Marshall approach in circulation at the time. Indeed, the familiar story moves ahead to the Charles River Bridge Case (1837), which saw a now-Jacksonian Court dial back a major strand of Federalist jurisprudence, the sanctification of vested property rights. Again, it is not clear that this story is best told through Hoffer’s celebration of Webster’s powers of constitutional argument. But, in any case, it would be more clearly told with a fuller account of the Jacksonian movement’s legitimate and triumphant critiques of Federalist jurisprudence.Readers of this journal will want to know that the interdisciplinary dimension of Hoffer’s book is limited. The methodology is that of a conventional intellectual biography, closely reading Webster’s arguments before the Court, as well as his private notes and papers, to draw out a coherent intellectual approach to an important problem of the time. Hoffer does occasionally bring some legal theory into the argument. For example, at one point he introduces ideas of originalism, original intent, textualism, legal positivism, and legal realism (88–90). But these tools of legal theory receive only the briefest of treatments, ultimately doing little to deepen the argument. Similarly, although Hoffer concludes the book with a helpful summary that focuses on Webster’s veneration of the rule of law, he misses the chance to provide a critical analysis of law’s function in a supposedly “democratic” society built on a slavery-protective Constitution.