Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution
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Most historians would settle for one landmark book. Morton Horwitz has published two already. The two volumes of The Transformation of American Law exist, however, in uneasy relation. To risk the reductionism that Professor Horwitz has always avoided, Transformation I was framed within historical materialism and strove to debunk the celebratory narratives of early American legal history. Transformation II, on the other hand, mapped onto an intellectual history that takes ideology seriously, and not only as an expression of Gramscian hegemony that dominant interests had to take seriously, too. An interesting counterfactual question is how Transformation I would differ if Professor Horwitz had written it in the spirit of Transformation II. What would the antebellum judiciary look like if its doctrines were viewed as something other than the expression of a legal profession that, in exchange for a monopoly on commercial dispute resolution, dedicated itself to the expansion of capitalist markets? If we took the legal reasoning of judges in the early Republic as seriously as Professor Horwitz took those of the “old” and “new” conservatives of the late nineteenth century, how would we characterize their decisions? The revision would not alter the outlines of Professor Horwitz's compelling argument about the economic consequences of doctrinal change. But it would at least complicate and humanize a judiciary that, in Transformation I, appears largely unitary and nameless. It might also return early American legal culture to its transatlantic and post-Revolutionary context. Professor Horwitz demonstrated that the “Commonwealth” historians who preceded him and examined some of the same issues, such as Oscar and Mary Handlin, Louis Hartz, and Willard Hurst, did not account for the distributional consequences of legal change. Yet both the Commonwealth historians and Professor Horwitz treated the reshaping of American law as a national phenomenon of the early nineteenth century while also describing a model of publicly subsidized economic development that could be applied to other places or times—and even revived in the United States a century later to help legitimize the New Deal. A step toward mediating the tension between exceptionalism and universalism in these narratives is to explore how the experience and memory of the Revolution affected legal reasoning into the nineteenth century. Most early American lawyers saw history playing out on a stage larger than the nation, but not marching across the entire globe. For decades they wrestled with the meaning, for law, of the Revolution. Internally, the British Empire had left them with a fragmented and pluralist legal order; the reconstitution of authority on the basis of popular sovereignty restructured but did not eliminate that fragmentation. Externally, they still derived most of their legal learning from Europe, especially England. The American constitutions did not specify how the legal systems in the new Union would operate. Their structure, personnel, and doctrine were left primarily to the legal professionals themselves. They had to solve problems of institutional design such as, Which structures worked best? What were the appropriate sources of law? And what literary forms should be used to teach and communicate law? Seeing early American judges as actors in a fluid, pluralist, and transatlantic legal culture throws a different light on the central theme of Transformation I. There, judicial decisions appear to flow from courts that, for the most part, agreed on their primary task: transforming law to subsidize economic development at the expense of agrarian producers. Professor Horwitz acknowledges that a few judges remained committed to agrarian values and dissented from the transformative consensus. Because of the deterministic premise of Transformation I, he treats these dissenters as voices from a fading world rather than as worthy opponents of modernization. It is correct, at least, not to treat them with nostalgia, because some of the dissenters objected less to economic transformation than to the reasoning process by which their brethren fostered it. In other words, even judges who supported commercial development disagreed about the limits that legal reasoning placed on those means. Instead of marching in lockstep, early American judges were arranged in constellations defined by region, education, training, and political ideology. Some constellations contained internal disagreement, too. The doctrinal changes that Professor Horwitz characterized as a single transformation reflected a variety of attempts, by many judges, to manage legal diversity among the states and, by some of them, to integrate the Union into the Atlantic world. This essay does not attempt to chart all the constellations of judges in the early United States.6 Instead, it explores disagreements between two of its most influential judges, Chancellor James Kent of New York and Justice Joseph Story of the U.S. Supreme Court, to illuminate how even judges committed to the same project—commercial union and international respect—disagreed about such fundamental questions of law as the extent of the federal commerce power, the reach of federal court jurisdiction, and the discretion of criminal juries. These disagreements reflected different understandings of the sources and methods of legal reasoning, as well as diverging assessments of the role of state, local, and popular institutions in American constitutionalism. Both were seeking to define who would administer legal change as the states evolved from a patchwork of British colonies into a federal union. These historical questions push beyond, or in different directions from, Professor Horwitz's monumental research agenda in Transformation I. They reopen the problem of law's role in developing not just the American economy but also its political economy. They also encourage us to view the early United States as a collection of postcolonial provinces rather than as a young nation on an inevitable path toward modernization. From this perspective, the root of all these questions was how early American lawyers and judges made sense of the Revolution's effect on law.
Source Publication
Transformations in American Legal History: Essays in Honor of Morton J. Horwitz
Source Editors/Authors
Daniel W. Hamilton, Alfred L. Brophy
Publication Date
2009
Volume Number
1
Recommended Citation
Hulsebosch, Daniel J., "Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution" (2009). Faculty Chapters. 908.
https://gretchen.law.nyu.edu/fac-chapt/908
