The Rhetorical Dynamics of Judicial Situations: Joseph Story, Ciceronian Rhetoric, and the Judicial Response to American Slavery

Abstract

This essays offers a rhetorical interpretation of judicial opinions Joseph Story wrote in four U.S. Supreme Court cases concerned with the slavery question: U.S. v. La Jeune Eugenie (1822), Groves v. Slaughter (1841), U.S. v. Amistad (1841), and Prigg v. Pennsylvania (1842). I argue that Story, a jurist trained in the intellectual traditions of the early republic, performed judicial argument as a kind of rhetorical action dependent upon Ciceronian controversia, a mental habit of arguing pro et contra on any matter in dispute. In consequence of this approach to judicial argument, Story's opinions do not represent a choice between positive law or natural law, neither do they represent a commitment to legal instrumentalism or legal formalism; rather they present controversial responses to rhetorical situations broadly conceived.