'To the Common Sense of the People': Joseph Story's Dual Foundation for American Constitutionalism

Abstract

Joseph Story’s Commentaries on the Constitution of the United States advances American constitutionalism as a synthesis of two sources: common law principles and Lockean natural rights philosophy. Many have viewed this work as a supplemental education for lawyers and judges, but this interpretation disregards Story’s stated intent for the work. Instead, this paper takes seriously Story’s goal and evaluates the Commentaries as a project of civic education. Story presents a developmental account that centers on the American people, following their adoption of specific aspects of the common law, to their unity in opposition to Great Britain, and finally to their adoption of a government based on consent. By incorporating an American common law into the basis of American life, Story seeks to stabilize the republican order and provide a richer account of the rights articulated at the founding and the duties required for self-government.