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Erik Visits an American Grave, Part 72

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This is the grave of Joseph Story.

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Born in 1779 in Marblehead, Massachusetts, Story graduated from Harvard in 1798 and was admitted to the bar in Salem in 1801. In 1805, he was elected to the Massachusetts legislature as a Jeffersonian, a difficult victory in this Federalist stronghold. He very briefly served in Congress, from December 1808 to March 1809, and then returned to the Massachusetts legislature, where he was elected Speaker in 1811. In November 1811, James Madison selected him to serve on the Supreme Court. He was only 32 years old. He would remain there until his death. He is still the youngest person ever selected to the Court.

As a justice, Story would develop into a conservative defender of property rights during an age of industrialization. He became closely aligned with John Marshall, even though he had been a Jeffersonian before this. He fought hard for the supremacy of the Supreme Court over the state courts, not an established fact at this time. It was the Virginia courts that rejected Story’s rulings, again an irony given his background. Overall, his view was one of expansive federal powers, particularly in Martin v. Hunter’s Lessee. And in later cases such as Charles River Bridge, when Roger Taney and the Democrats had taken over the court, Story became the chief dissenter, supporting the rights of nascent corporations consistently. Today, he is most famous for ruling for the self-emancipated slaves in the Amistad case. In 1829, he also took a job teaching at Harvard. There, he wrote Commentaries on the Constitution, one of the most important early books on interpreting the Constitution. He died in 1845, the last old-school Early Republic figure in government.

Although you don’t get a lot of obscure Supreme Court justices appearing in film, retried Supreme Court justice Harry Blackmun played Story in Amistad.

Joseph Story is buried at Mount Auburn Cemetery in Cambridge, Massachusetts, where he spoke at the dedication cemetery in 1831.

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  • Q.E.Dumbass

    OT: Bill Paxton is dead.

    • One of the benefits of this series is that the only reasonable end to it is when I die. Of course, all the people getting cremated these days doesn’t help. Let’s hope Paxton was a big fan of the series and acts appropriately. His last gift to the world.

      • N__B

        Game over, man, game over.

        • wjts

          I suggested that as an epitaph to a friend. He said, “Too obvious.” My other suggestion was “Bill Pullman, May 17, 1955 – February 25, 2017”.

          • N__B

            I expect Pullman’s publicist is busy right now.

      • sapient

        Never end this series! Thank you for it, Erik!

      • sigaba

        Wild Bill was an acquaintance, a good friend of a good friend of mine, I’d last seen him in May at a birthday, he was missing this Thursday at a party and we all wondered where he was. (He lived up in Ojai so we all attributed his absence to that.)

        He was one of the leads in the first film I ever did as a full sound designer/sound supervisor, I met him on the ADR stage and the man was a deeply committed artist and just a great guy.

        He never mentioned the blog, Erik.

      • Dennis Orphen

        Trespass: Star Wars for Real Hipsters. Bonus points if you can name the car Raymond drives.

        • Nigel Tufnel

          Would that be the Olds Delmont 88?

    • Also journo/podcaster Chaz Pazienza died!

  • wjts

    Did Blackmun need to join SAG for his performance? If so, is he the only Supreme Court justice who has ever been a member?

    • N__B

      Did Leahy join for his Batman appearances?

      • wjts

        Dunno. Also an interesting question.

        • sigaba

          Yes they did unless there was some kind if terrible irregularity.

          Fun fact: CAA and Endeavour both have desks that rep politicians and political celebrities, folks like John McCain often have talent agents.

          • Dennis Orphen

            Well, he is a fuckin’ actor. (And in fairness, I thought he did a commendable job hosting SNL).

            If maverick politics were orgasms, J.M. is surely faking it.

  • rea

    If you are looking for suggestions for future visits–Ida Lewis (yesterday’s Google doodle) is buried close at hand to you, and has a cool-looking marker.

  • No Longer Middle Aged Man

    I especially like the entries in this series that use Mount Auburn Cemetery. I used to ride the bus from Watertown Square past it, and the old Western Electric plant on Mt Auburn Street, as part of my daily commute. Relics from two different eras of American history.

    • Dennis Orphen

      The Idea Factory is one of the best books I’ve read. Okay, it’s about the lab more than Western Electric but still, it all fits.

    • Downpuppy

      You can’t spit in Mt Auburn without hitting a good target for Erik

  • Joseph Slater

    Cool Story, bro.

    • Hogan

      Well played.

    • Dennis Orphen

      As a huge fan of The Sundays, I might have to change my last name to ‘Story’, be buried instead of cremated with my ashes scattered at the corner of 28th and E. Burnside.

      • Linnaeus

        Saw them live once at a place called The Blind Pig in Ann Arbor, Michigan. A very good show.

  • Joe_JP

    Something of a brief entry.

    Would toss in his infamous opinion in Prigg v. Pennsylvania.

    http://balkin.blogspot.com/2017/02/will-united-states-survive-2016_22.html

    Story from my vantage point must be the Lieberman of the Jeffersonian Party down to his alliance with the hated John Marshall.

    • Dilan Esper

      The fugitive slave act was odious, but it was also clearly constitutional. The original Constitution expressly addresses the issue.

      • sigaba

        It seems like there’s a little room for debate over the whole question of wether or not it was okay for people to travel into the North, kidnap people Bail Bondsman-style and then transport them to a slave state without any legal process. Even granting that slavery itself is legal, and even granting the basic idea that slave states have some kind of universal jurisdiction over their fugitive slaves.

        (It’s when you read about stuff like this you wonder about exactly what the Founders had in mind when they talked about Federalism and Limited Government.)

      • rea

        The fugitive slave act was odious, but it was also clearly constitutional.

        Well, the Constitution doesn’t explicitly empower federal action on the issue. The fugitive slave clause is in Art. IV, not I. And Prigg predates the enactment of the famous Fugitive Slave Act–Storey in Prigg had stated that states might be able to limit the power of their officials to return escaped slaves. At the time, Prigg was regarded as allowing states to wiggle out of their obligations, which is why, 8 years later, the slavers traded California statehood (and consequent loss of control of the Senate) for a new and stronger federal act.

        • Mark Field

          Yes. The issue in Prigg was whether Congress could enact a Fugitive Slave Law in the absence of any obvious grant of power to do so, or whether it remained a state obligation but solely pursuant to state law as a matter of “state’s rights”. Story, as a nationalist, ruled in favor of national power. The pro-slavery Justices either joined the opinion or concurred, both without a trace of irony.

      • Joe_JP

        The fugitive slave act was odious, but it was also clearly constitutional. The original Constitution expressly addresses the issue.

        The text:

        No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

        What does this mean and what is its reach? Unclear.

        The clause before this deals with rendition of regular fugitives. It was understood to give states a duty of return but SCOTUS held the federal government could not compel
        state action for said return. Kentucky v. Denninson.

        What does “shall be delivered up on claim of the party to whom such service or labor may be due” mean and how should it be enforced? Does it being in Art. IV over Art. I suggest congressional power is absent? What process is due to the alleged fugitive, a person under the Constitution and by Northern law presumed free? Does federal law here pre-empt Northern state personal liberty laws? How far?

        Your bland comment skips over some room for debate here. Then, there’s the opinion itself. One issue with Prigg, as noted in the literature (e.g., Don Fehrenhbacher) is the somewhat dubious this clause or “no Constitution” historical necessity argument. [The clause was a late tack-on that seemed of little note.]

        The slave power friendly nature of the opinion includes this:

        The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain

        It doesn’t say “slave,” first off, but more importantly, this is not actually clear at all. A more one-sided slavery friendly analysis is hard to imagine. Why can’t, e.g., a state “regulate” it to ensure protections for the alleged fugitives? The 1793 Act did not compel such extremism.

        Story deemed the clause to give Congress power to act, but that isn’t compelled by the text, especially given antebellum state rights understandings and the placement of the clause. His conclusion is reasonable; it is not compelled. There is no “express” and “clear” answer.

        In fact, if we are to argue the 1793 Act is fully constitutional, Prigg might in a limited way clash. The act gives slave catchers the right to go to state courts (“hereby empowered”) and when the proper evidence is shown “the duty of such Judge or magistrate” is to give them a warrant to take the person from the state. Story’s opinion questions if this could be mandatory though states can voluntarily do it. But, the text of the statute to me seems mandatory.

        https://web.archive.org/web/20090923082639/http://www.ushistory.org:80/presidentshouse/history/slaveact1793.htm

        • Mark Field

          Yes to all of this. The best one can say for Story is that he saw that the PA stat would be struck down regardless of how he voted, so he chose to put it on nationalist grounds rather than “states rights”.

          • Bloix

            This was posted at the law blog Balkinization a few days ago:

            Tomorrow I shall teach Prigg v. Pennsylvania to my class. For non-professors, it is what I think is the worst single decision in our 225 year history. Justice Story not only upheld the constitutionality of the Fugitive Slave Law of 1793, but also declared a constitutional right to “self-help repossession” by slaveowners who could kidnap purported fugitives without recourse to the slightest legal process (inasmuch as Story also declared unconstitutional Pennsylvania’s “personal liberty” law that required going before a Pennsylvania court (or a federal court) before purported fugitives could be taken from the state. Enforcement of Fugitive Slave Laws of 1793 and then 1850 helped to contribute to the breakdown of the Union, renting the “mystic chords of memory” that resulted in secession and then the slaughter of 750,000 persons between 1861-1865.

            https://balkin.blogspot.com/2017/02/will-united-states-survive-2016_22.html

  • Hogan

    The marker was sculpted by his son, William Wetmore Story, who was the subject of a biography by Henry James.

    • Honoré De Ballsack

      The marker was sculpted by his son, William Wetmore Story, who was the subject of a biography by Henry James.

      And while we’re on the topic, let’s not forget the excellent biopics made about Joseph’s descendants, Philadelphia and Straight.

      • The William Wetmore Story Story?

      • sigaba

        Also Neverending and R. Sargum Dogg, know to his friends as “Shaggy Dogg.”

  • Colin Day

    Although you don’t get a lot of obscure Supreme Court justices appearing in film, retried Supreme Court justice Harry Blackmun played Story in Amistad.

    Retried?

    • Porlock Junior

      While eating refired beans.

      • Breadbaker

        He acquitted himself well in the retrial.

  • Gwen
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