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This review will be in multiple parts. Abel Upshur's book has come up several times in discussion, and Joseph Story's book is certainly referenced, so even though I've read most of it, I thought it would be useful to go back through "A brief enquiry" once again, because there's a lot of good information in it.
A Brief Enquiry into the True Nature and Character of our Federal Government: being a review of Judge Story's Commentaries on the Constitution of the United States
by "A Virginian" Abel Upshur, 1840
Part 1 - the Introduction and Foundations
Just to give some background information on the author of this book, Abel Parker Upshur lived from 1790 to 1844. He was from Virginia, and over the course of his life was a lawyer, judge and politician. In addition to Virginia state politics, he was Secretary of the Navy and Secretary of State for President John Tyler. He played a key role in the annexation of Texas, though he did not live to see that state enter the Union, being killed on February 28, 1844 by a gun explosion aboard the USS Princeton. Upshur was an advocate for states' rights and nullification. He was not a historian by profession, but he put his legal, analytical methods to work to write an argument which depends on the facts of history. In the introduction to this book, he states the following:
Upshur begins the book with a brief discussion of Story's commentaries, and then notes that there had been a general demand for "work presenting a proper analysis and correct views of the Constitution of the United States" and that while there had been a number of such works in the previous 15 years, most were not worth reading. A few were, however, "of a much higher order, and bearing the stamp of talent, learning and research." among which were the works of Chief Justice Kent, and the work under consideration, that of Joseph Story. In other words, commentaries on the Constitution was a crowded field of which only a few were worth reading. Upshur admits the expertise of the authors carries a lot of weight, but he hopes the reason and argument which he employs can be a counterweight. Upshur also notes that the Federalist is the first and best commentary on the Constitution, but that when those essays were written, the Constitution was a theory, and much had developed since it had been put into operation which the authors could not have forseen.
Upshur freely admits Story's expertise, drawn from much practical experience with Constitutional questions as a Supreme Court justice, and praises his reputation for "laborious research" and "calm and temperate thinking", so Upshur is fully aware of the high standard of work which he is challenging. Consequently, he also intends to be "judicious" and to carefully set out his case for the reader.
Upshur divides his book into three sections, which he describes for the reader:
- "the charters, constitutional history, and anti-revolutionary jurisprudence of the colonies"
- "the constitutional history of the states, during the revolution, and the rise, progress, decline and fall of the confederation."
- "the history of the rise and adoption of the Constitution, and a full exposition of all its provisions, with the reasons on which they were respectively founded, the objections by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government"
Historical fact will be foundational to Upshur's arguments, though as the examination of history begins, Upshur also expresses some philosophical views about the importance of the colonization of North America. "There is not, within the whole range of history, an event more important, with reference to its effects upon the world at large, than the settlement of the American colonies." - p 8 Upshur goes on to again compliment Story on the facts he brought ot the table, while wishing he had broadened the scope of his work. Upshur bemoans the same thing that we often find today: two people look at the same set of facts and come away with different conclusions.
A Brief Enquiry into the True Nature and Character of our Federal Government: being a review of Judge Story's Commentaries on the Constitution of the United States
by "A Virginian" Abel Upshur, 1840
Part 1 - the Introduction and Foundations
Just to give some background information on the author of this book, Abel Parker Upshur lived from 1790 to 1844. He was from Virginia, and over the course of his life was a lawyer, judge and politician. In addition to Virginia state politics, he was Secretary of the Navy and Secretary of State for President John Tyler. He played a key role in the annexation of Texas, though he did not live to see that state enter the Union, being killed on February 28, 1844 by a gun explosion aboard the USS Princeton. Upshur was an advocate for states' rights and nullification. He was not a historian by profession, but he put his legal, analytical methods to work to write an argument which depends on the facts of history. In the introduction to this book, he states the following:
My conclusions are drawn from the authentic information of history, and from a train of reasoning, which will occur to every mind, on the facts which history discloses. My object will be answered, if even the few by whom these pages will probably be read shall be induced to re-examine, with a sincere desire after truth, the great principles upon which political parties in our country were once divided, but which there is much reason to fear are no longer respected, even if they be not wholly forgotten.
Upshur is essentially writing a rebuttal to an earlier treatise on the Constitution written by Joseph Story, an influential lawyer and Supreme Court Justice. Story was a prolific and successful author, and his work was and is highly respected, so Upshur took on a pretty major task in attempting to rebut some of Story's arguments. At 132 pages, this is not a long book, and will not demand hours of your time if you choose to read it.
Upshur begins the book with a brief discussion of Story's commentaries, and then notes that there had been a general demand for "work presenting a proper analysis and correct views of the Constitution of the United States" and that while there had been a number of such works in the previous 15 years, most were not worth reading. A few were, however, "of a much higher order, and bearing the stamp of talent, learning and research." among which were the works of Chief Justice Kent, and the work under consideration, that of Joseph Story. In other words, commentaries on the Constitution was a crowded field of which only a few were worth reading. Upshur admits the expertise of the authors carries a lot of weight, but he hopes the reason and argument which he employs can be a counterweight. Upshur also notes that the Federalist is the first and best commentary on the Constitution, but that when those essays were written, the Constitution was a theory, and much had developed since it had been put into operation which the authors could not have forseen.
The Constitution is much better understood at this day than it was at the time of its adoption. This is not true of the great principles of civil and political liberty, which lie at the foundation of that instrument ; but it is emphatically true of some of its provisions, which were considered at the time as comparatively unimportant, or so plain as not to be misunderstood, but which have been shown, by subsequent events, to be pregnant with the greatest difficulties, and to exert the most important influence upon the whole character of the government. Contemporary expositions of the Constitution, therefore, although they should be received as authority in some cases, and may enlighten our judgments in most others, cannot be regarded as safe guides, by the expounder of that instrument at this day. The subject demands our attention now as strongly as it did before the Federalist was written. (p 7)
Upshur freely admits Story's expertise, drawn from much practical experience with Constitutional questions as a Supreme Court justice, and praises his reputation for "laborious research" and "calm and temperate thinking", so Upshur is fully aware of the high standard of work which he is challenging. Consequently, he also intends to be "judicious" and to carefully set out his case for the reader.
Upshur divides his book into three sections, which he describes for the reader:
- "the charters, constitutional history, and anti-revolutionary jurisprudence of the colonies"
- "the constitutional history of the states, during the revolution, and the rise, progress, decline and fall of the confederation."
- "the history of the rise and adoption of the Constitution, and a full exposition of all its provisions, with the reasons on which they were respectively founded, the objections by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government"
Historical fact will be foundational to Upshur's arguments, though as the examination of history begins, Upshur also expresses some philosophical views about the importance of the colonization of North America. "There is not, within the whole range of history, an event more important, with reference to its effects upon the world at large, than the settlement of the American colonies." - p 8 Upshur goes on to again compliment Story on the facts he brought ot the table, while wishing he had broadened the scope of his work. Upshur bemoans the same thing that we often find today: two people look at the same set of facts and come away with different conclusions.