From Legal Commentaries to Common Instruction: Joseph Story’s Abridgments to His Commentaries on the Constitution of the United States

Abstract

Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) have long been regarded as the scholarly source for a nationalist account of the U.S. Constitution in Antebellum America. Yet recent scholarship has questioned whether the Commentaries should be viewed exclusively as a work of legal scholarship. This article reinterprets Justice Story’s three-volume work as a project of civic education during a period of political and constitutional uncertainty. Written during the Nullification Crisis and in the wake of codification efforts, Justice Story presents his Commentaries for the use of the American public, providing them, and not exclusively lawyers and judges, with a source to support a popular conception of American constitutionalism. Story’s project of civic education is clearly shown by his personal efforts to abridge his Commentaries on three separate occasions to ensure the wide distribution of the work to Americans of different ages, groups, localities, and levels of education. As such, this article offers Justice Story as a guide to contemporary judges who seek to engage in civic education projects.

1. Introduction

In a 2013 speech at Boise State University, Supreme Court Justice Sandra Day O’Connor reflected on her choice to devote her retirement to civic education efforts. Recognizing the need for each generation to learn the “skills and knowledge of citizenship,” she expressed her belief that federal judges “have a special obligation to help the public understand” the necessity of an independent judiciary in the structure of the U.S. Constitution (O’Connor 2013). For O’Connor, judges play a primary role in civic education.

Justice O’Connor, while perhaps the most active in promoting a program for civic education, iCivics, was not unique among her contemporaries in recognizing the educational duty entrusted to justices of the Supreme Court. Of her colleagues, three justices published works intended for a public audience on topics varying from constitutional interpretation (Scalia 1998; Scalia and Garner 2012; Breyer 2007, 2024), the role of citizens in the constitutional order (Breyer 2010), and the advancements made to include more Americans within the legal community (Ginsburg et al. 2016). Moreover, current Supreme Court justices have followed in O’Connor’s footsteps. Justice Neil Gorsuch has published a monograph on the requirements of active citizenship (Gorsuch 2019), and Justice Sonia Sotomayor has written several books intended for primary school children (Kelso and Kelso 2021, p. 474). These efforts from members of the Rehnquist and Roberts Courts point to a shared conception of the necessity to popularize anew constitutional thinking to encourage the American people to maintain and support our constitutional order.

Yet commentators are not unified in recognizing Supreme Court justices’ efforts at civic education as a positive influence on American politics. Indeed, some critics have directly confronted whether civic education and an independent judiciary can coexist. Marna S. Tucker has detailed critiques aimed at federal judges, and especially members of the Supreme Court, who wrote journal articles or “popular books on the law,” delivered addresses to professional groups, and participated in “judicial training seminars” (Tucker 1982, p. 204). These criticisms, while focused on different ways that federal judges engage with the public, share common ground—the belief that judicial independence and discretion may be threatened by judges’ participation in civic education efforts. As David Levi has explained, this approach seems to pit a fair and impartial judiciary against the judicial qualities of discretion and judgment (Levi 2020). This tension is not only difficult to maintain since it pushes against the constitutional function of an independent judiciary entrusted to resolve individual cases and controversies, but it has produced an “aura of mystery” surrounding the role of judges in our constitutional order (Tucker 1982, p. 203). For Tucker and Levi, the idea of an independent judiciary may be under attack because of past efforts to protect the independent judiciary through isolation and abstraction.

The tide may be turning, however. As Kari and J. Clark Kelso argue, individuals throughout the legal profession have been exploring how to reincorporate the judiciary into civic education efforts. This latest trend is premised on the idea that judicial involvement in civic education necessarily improves knowledge of and trust in constitutional principles. The return to civic education among contemporary Supreme Court justices is but one example of this.

Twentieth- and twenty-first-century justices are not the first members of the Supreme Court to recognize the deep connection between the general population’s knowledge of and participation in the American constitutional experiment and the role of the Supreme Court. In fact, Ralph Lerner has argued that this educative function was recognized by the first generation of justices, the pre-Marshall Supreme Court, who used grand jury charges to instruct Americans on the necessary attributes of republican citizenship (Lerner 1967). This educative function of Supreme Court justices outlived the grand jury charge, which Lerner suggests did not survive long past the Federalist period (Lerner 1967, p. 135).

Perhaps the clearest example of the Court’s educative role is found in the actions of a nineteenth-century justice, Joseph Story. While Story extended the practice of jury charges on circuit after the Federalist period (Story 1852, pp. 122–47), his most comprehensive efforts at civic education can be found in his three-volume Commentaries on the Constitution of the United States (1833), which he completed while a sitting Supreme Court justice. Of course, he was preceded by other Supreme Court justices who engaged in public education efforts. For example, Chief Justice John Marshall wrote, The Life of Washington, a biography of George Washington, which expanded into an historical and political analysis of the formation of the American Republic and its people (Marshall 2000). Similarly, James Wilson offered his Lectures on Law to students at the College of Philadelphia while sitting on the nation’s highest court. Story’s Commentaries could be viewed like Wilson’s Lectures, as they began first as a series of lectures at Harvard Law School, where Justice Story served concurrently as the Dane Professor of Law. However, from the outset, Story recognized a wider audience for his Commentaries. While Wilson may have aimed for a public purpose for his lectures, he left that work to later generations (Hall 1997, pp. 27–30). Joseph Story, on the other hand, articulated the public purpose of his Commentaries on the Constitution and sought to distribute the work to Americans of different ages, groups, localities, and levels of education by abridging the work on three separate occasions.1 In doing so, he directly confronted how a sitting Supreme Court justice could engage in civic education while meeting the requirements of judicial independence.

This article argues that Story’s Commentaries on the Constitution are best understood as a project of civic education that responds to growing political and constitutional uncertainty in Antebellum America. By recognizing the Commentaries as a work of civic education, Story can serve as a model for jurists who seek to provide a comprehensive constitutional education in support of American self-government. Joseph Story, as a member of a generation that inherited the Constitution, recognized the deep need for each generation to understand their role in constitutional politics.

To advance this account of Story’s Commentaries, this article will develop in three parts. First, I address the emerging constitutional crisis that prompted Justice Story to recognize the need for a public constitutional education. Specifically, I argue that Story wrote his Commentaries on the Constitution in response to social compact theory and other emerging popular constitutional movements such as codification. Then, I present Story’s unique contribution to this public debate, especially the role his several abridgments play in responding to the constitutional controversies of Antebellum America. Finally, I consider Story’s project as a guide for future civic education efforts in the context of the federal judiciary.

2. Story’s Commentaries on the Constitution as a Response to Constitutional Uncertainty

Considering Joseph Story as a civic educator offers a new perspective on the justice. This perspective challenges the long-held view established by James McClellan, who argued that Story’s resistance to Jacksonian democracy revealed his doubts about majoritarian politics and preference for judicial interpretation to protect individual liberty (McClellan 1971). If we return the Commentaries to their political context, it is harder to square a view of Joseph Story that is elitist and anti-democratic with his personal abridgment project. While Peter Schotten defended Story against this anti-democratic charge, even he hesitated to identify Story’s Commentaries as a work of civic education (Schotten 2003, 2010). Traditionally, Story’s Commentaries have been viewed as the embodiment of his legal mind. Scholars have thus studied the Commentaries from different perspectives to glean lessons concerning natural law jurisprudence (McClellan 1971; Forsyth 2019), common law jurisprudence (McDowell 1982; Stoner 1992, 2019), or nationalist constitutional interpretation (Newmyer 1986; Schotten 2003, 2010). Yet the most comprehensive studies of Story’s Commentaries view the work in its instructional capacity. Kent Newmyer and H. Jefferson Powell, for example, have considered the educational aims of the work for the legal community (Powell 1985; Newmyer 1987). However, they limit Story’s intended audience to lawyers and judges, interpreting the Commentaries as a resource for the continuation of legal education. For Powell, this audience is clearly established by the complexity of the work itself. Since he combined natural law principles with common law reasoning to provide the fullest public meaning available to the constitutional text, Story left the three-volume work relatively inaccessible to a lay audience (Powell 1985, p. 1307).

This longstanding interpretation removes Story’s Commentaries from the context in which he wrote them and thus fails to consider Story’s stated intention for the work. Justice Story wrote his Commentaries on the Constitution during the Nullification Crisis of the 1830s, and his abridgment efforts ought to be viewed in relation to the public arguments of Antebellum America. In support of this assertion, Story’s work continually reminds his readers of the ongoing antebellum debate. Not only did Story conclude the second volume of his Commentaries by identifying President Jackson’s “Nullification Proclamation” as worthy of “very high praise,” but he even included a significant portion of the speech within the work, recognizing it as “among the ablest commentaries ever offered upon the constitution” (Story 1833b, p. 543). Story’s use of Jackson’s Nullification Proclamation allows him to identify social compact theory—the view that the several states are the sovereign entities that adopted the U.S. Constitution—as the primary constitutional argument that he seeks to disprove in the work. But long before citing Andrew Jackson’s public rebuff of nullification, Story had laid the theoretical and historical grounding for the rejection of social compact theory. The first volume of the Commentaries on the Constitution of the United States traces the development of the United States as a nation from 1774—when the Continental Congress formed in opposition to British overreach—and navigates how each American colony-turned-state participated in the development of a national conception of popular sovereignty to rival social compact theory.

A secondary public debate can also be found in Story’s Commentaries. The 1820s and 1830s witnessed many popular efforts to democratize the American legal system, with the American Codification Movement being perhaps the most famous (Schlesinger 1945, pp. 330–33; Gordon 1983; Magliocca 2007, p. 12). This movement was spurred by popular feeling that the principles of common law supporting the judicial system were foreign, rigid, and inconsistent with the principles of American democracy. In response, lay Americans sought to codify the law into a coherent and accessible corpus. Story pushed against the extreme forms of codification in his Commentaries, arguing instead that the American adoption of parts of the common law was one of the earliest manifestations of American popular sovereignty (Flaherty 2023, pp. 146–49). Far from a foreign legal authority, the American colonists came to understand the practices and features of self-government by participating in their common law systems.

While these public debates were politically different, they shared similar misconceptions regarding the Constitution of 1787—misconceptions that Story sought to publicly correct. Social compact theory and codification attempted to make American legal culture more “popular,” i.e., closer to the people, but understood popular rule in different ways. According to the Nullifiers, the states must be recognized as the source of sovereignty and the true representatives of the people, while, according to codifiers, the laws must be more accessible and functional for the general public. Both movements, then, questioned the nature of popular rule in the United States, and Story sought to respond to these interpretations by defending the constitutional order as the product of national popular sovereignty. I have termed Story’s account “national popular sovereignty” to place it directly in contrast to social compact theory while emphasizing how his account also responds to radical codification efforts. Of course, Story recognized social compact theory, and its eventual support of nullification (and secession), as a far more dangerous problem than codification, but both efforts encouraged doubt as to the American people’s ownership of the U.S. Constitution. For Story, the American experiment of self-government requires popular support and popular recognition of the citizen’s essential role in American politics.

This conviction led Justice Story to write his Commentaries on the Constitution of the United States, and he articulated the public purpose of the work in the preface to the original three-volume version. Story’s preface thus stands in opposition to the established interpretation that the work was meant solely for lawyers and judges (Flaherty 2023). Moreover, Story’s original preface reveals something quite important about his project. The civic education project did not develop because of the success of his Commentaries; rather, the civic education goals are part of the original design. For this reason, Story began his three-volume work—the version most likely to be intended for a legal audience—by identifying his audience as “the public,” or in other words, the “general reader” (Story 1833a, p. v). His choice of audience confirms the public nature of his project.

This makes Story’s Commentaries especially noteworthy compared to his other efforts at public education. Story, who remarkably served as Dane Professor of Law at Harvard Law School while an associate justice on the Supreme Court, offered constitutional education through several avenues: through addresses made to the Suffolk Bar, memorials and eulogies he offered on special occasions, and the many public addresses he gave to the legal community within and outside Harvard (Story 1852). Story’s Commentaries on the Constitution appear different compared to these efforts. While his public lectures surely support his civic education project by directly exhorting the legal public to fulfill their duties to support the constitutional order, the Commentaries on the Constitution step beyond the legal profession. Justice Story recognized that the American people must directly confront their role in constitutional maintenance. Story responded to the public’s desire to engage in constitutional politics by developing an educational program that was accessible and rooted in their experience of constitutional controversy.

Story’s project was not solely public—that is, intended for a popular audience—but was geared toward civic education. He sought to equip the American citizenry with the constitutional knowledge necessary to participate in their political community and defend the constitutional order against attempts to shift the foundations of the American Constitution. As Story made clear, this education would allow the American public to consider the “nature and value” of the national constitution (Story 1833a, p. vi). This project concerned the foundation of American constitutionalism and the utility of that foundation for the American people. He wanted members of the public to reflect on the nature of the Constitution as a product of popular sovereignty, recognize the authority it provided to the people of the United States, and become better informed regarding the theory, history, and legal principles that structured their governing document so as to know their political duties. Thus, for Story, a civic education is inherently a constitutional education (Thomas 2020). To educate the American people in their governing system is to encourage them to recognize their role as a constitutional people with certain obligations for upholding and defending the constitutional order. It is to ensure that the authority within the American republic, the people, can maintain their constitutional order.

The reform movements of Story’s time even reveal this constitutionally oriented mindset. The American people of the 1830s were committed to the notion of delegated power found in liberal constitutionalism. As such, they endeavored to make everyday politics reflect this foundation of delegated power by making the legal system more accessible and understandable. As such, the move to codify laws could be viewed as a popular effort to make the legislative and judicial powers easily observable and understandable to the sovereign people; to ensure transparency between the people and their designated agents. Story’s opposition to the Codification Movement was not necessarily against the goals of the codifiers but against the methods and principles invoked to reach their goals. Story saw great danger in downgrading fundamental laws to the level of legislation. This move threatened the system of delegated powers at the root of American constitutionalism. Story thus argued in favor of a constitutional outlook that prioritized a continuous, enduring, and fixed meaning of the Constitution. This outlook protects the foundations of the political order against the pace of everyday politics so that the sovereign will of the people is protected. But this does not mean that constitutional change is impossible. Instead, Story emphasized the formal structure of constitutional change: the amendment process (Story 1833c, pp. 685–90). This process ensures that the sovereign people approach constitutional change with deliberation rather than risk the protection of fundamental principles and rights in moments of sudden political change.

Story’s meticulous Commentaries should therefore be understood as his attempt to educate the general American in the fundamental principles of the U.S. Constitution. As a result, Story’s project of constitutional education could not be disinterested. He staunchly advocated a particular understanding of the U.S. Constitution as rooted in a conception of national popular sovereignty to combat competing constitutional interpretations. With this goal, Story knew that his work could not be a standard commentary written for lawyers or judges or a highly philosophical argument that advanced a nuanced interpretation of the Constitution to convince academicians. Rather, for his Commentaries to fulfill their purpose of civic education, they must present a thorough yet accessible argument that would convince the American public of the value of their governing document. Recognizing this goal allows us to better understand Story’s choice to engage in an editorial project of abridgment to distribute his Commentaries to a wider range of American readers.

2.1. Story’s Abridgments

Justice Story abridged his Commentaries on the Constitution of the United States three separate times to increase its accessibility.2 He intended the first abridgment—still quite long at 736 pages and published three months after the original work—for use at colleges and high schools. A year later, Story published the Constitutional Class Book for “higher classes of the common school” (Story 1834). Finally, in 1840, he published A Familiar Exposition of the Constitution, which was “designed for the use of school libraries and general readers” (Story 1840). While these abridgments were designed for separate audiences, they imitated the structure of the original work, maintaining Story’s attention to how the colonial origins and history of the confederation period structured the 1787 Constitution. Moreover, as found in his original work, Story made clear his intention for these abridgments in the preface that he attached to each publication. These prefaces offer insight regarding how we should understand the relationship between the several abridgments and his original three-volume work.

Story attached the original preface to his first abridgment, a one-volume version of the Commentaries, but included a short advertisement explaining how the one-volume work ought to be viewed in relation to the original. According to Story, the shorter version, “presents in a compressed form the leading doctrines of that work, so far as they are necessary to a just understanding of the actual provisions of the Constitution” (Story 1833d, p. vii). Story hoped that, despite the edition’s shortened form, the reader would be convinced by the “reasoning in favour of every clause of the constitution” so that “the youth of my country will learn to venerate and admire” the Constitution “as the only solid foundation, on which vest our national union, prosperity, and glory” (Story 1833d, pp. vii–viii). Therefore, Story echoed his hope that his Commentaries might lead the public to recognize the true nature of the Constitution as a product of popular sovereignty and defend it against attempts to uproot its constitutional foundations. As such, Story made the value of the Constitution clearer for his college and high school audience: the Constitution is the “only solid foundation” for American self-government. To prove this claim, this abridged edition contains Story’s analyses of the foundation of American constitutionalism and the necessity of a final judge in constitutional controversies—the two central disputes between social compact theorists and proponents of national popular sovereignty.

The following two abridgments further show Story’s hope that the general American would come to venerate the Constitution after a thorough education in its features and principles. While the goal for these abridgments remains the same, Story significantly shortened and clarified these works to improve accessibility. He intended his 1834 Constitutional Class Book for “the higher classes in our common schools” after being encouraged that “such a work was a desideratum in the common course of the education of American youth” (Story 1834, p. 3). Given this purpose, he was compelled to rewrite the work to match the needs of his intended audience. The Class Book is therefore significantly shorter than the first abridgment—down to 166 pages—and omits several key sections of the original work, specifically Story’s nuanced critiques of American social compact theory and his methodological account of constitutional interpretation.

Yet Story did not think the American public incapable of comprehending these concepts. In place of these chapters, Story provided an analysis of the Preamble as primary evidence for the nature of the Constitution and the clearest guide for constitutional interpretation. His chapter on the Preamble, entitled “Exposition on the Constitution,” offered a general statement on constitutional interpretation that declared the true foundations of American constitutionalism:

We shall treat it, not as a mere compact, or league, or confederacy, existing at the mere will of any one of more of the States, during their good pleasure; but, (as it purports on its face to be) as a Constitution of Government, framed and adopted by the people of the United States, and obligatory upon all the States, until it is altered, amended, or abolished by the People, in the manner pointed out in the instrument itself. It is to be interpreted, as all other solemn instruments are, by endeavouring to ascertain the true sense and meaning of all the terms; and we are neither to narrow, nor enlarge them, by straining them from their just and natural import, for the purpose of adding to, or diminishing its powers, or bending them to any favorite theory or dogma of party. It is the language of the People, to be judged of according to common sense.

(Story 1834, pp. 33–34)

Refusing to lose the central lesson of his Commentaries, Story distilled his argument into a single paragraph and placed this teaching before his analysis of the Constitution’s six stated aims. Story’s lesson to American children attending common school was two-fold: the Preamble clearly states that the Constitution was adopted by the people of the United States, and this recognition directs us to interpret constitutional provisions according to the common sense of the people. While Story provided a different preface and condensed structure to the Constitutional Class Book, he maintained the principal features of his constitutional education in the work. In addition, in one paragraph, Story rejects the radical social compact argument that the Constitution was the product of the several states rather than the American people.

The last abridgment, his 1840 Familiar Exposition of the Constitution of the United States, resembles the Constitutional Class Book. Like the Class Book, Story wrote a different preface for the abridgment, which reflected his intention that it be used “not only for private reading, but as a textbook for the highest classes in our Common Schools and Academies” (Story 1840, p. 5). As such, this abridgment is more advanced than the Class Book, containing sections and topics that “may seem remote from those topics, which ordinarily engage the attention of our youth” and others “of such an abstract political nature.” But Story was convinced that “upon closer examination” even these remote topics and abstract political reflections would “essentially aid the student in his future progress, and place him, as it were, upon the vantage ground, to master the leading principles of politics, and public policy” (Story 1840, p. 5). Story’s last abridgment, therefore, appears as a mixture of the original Commentaries and the Class Book, engaging in a more reflective and perhaps even philosophical consideration of central political questions while following the Class Book’s structure and reliance on the Preamble as a vehicle for the defense of national popular sovereignty.

2.2. The Accessibility of Story’s Commentaries on the Constitution of the United States

These abridgments, and especially Story’s aim to make accessible complicated constitutional text and theory to different ages and levels of readership, direct us to reconsider the common view towards his original Commentaries. Contrary to previous claims that the Commentaries’ complexity excludes lay Americans from its study, Story approached writing his Commentaries differently than he did his other legal writing. He went to great lengths to plainly present American history, constitutional theory and development, and political philosophy so that readers of varying ability could come to greater knowledge of American constitutionalism. This presentation instructs us to read the several abridgments as an integral part of the civic education project begun in his original Commentaries. Moreover, Story suggested that these versions should not be viewed in isolation; in his Familiar Exposition, Story expressed hope that his readers might feel prepared to turn to the three-volume work after a diligent study of the present abridgment (Story 1840, p. 6).

The original three-volume Commentaries is far closer to the approach found in the abridgments than his other legal writings. Story aimed to present a comprehensive yet common understanding of constitutional interpretation. In support of his stated intention in the work, Story promised to avoid any new theories or “novel constructions” of constitutional law (Story 1833a). Instead, he turned to common sources, especially the Federalist Papers and other authoritative authors like John Adams, James Madison, William Blackstone, and Chief Justice John Marshall, to present constitutional principles to “the common sense of the people” (Story 1833a, p. vi). These sources were recognized as political authorities and cited by past popular authors. The Virginian jurist Henry St. George Tucker, for example, popularized William Blackstone through his 1803 Commentaries on the Laws of Virginia (Cook 1981, p. 12). This shared constitutional approach was supported by Story’s willingness to cite even those authoritative figures with whom he had substantial interpretive disagreements. We have already seen his use of Andrew Jackson, perhaps the most popular figure in 1830s America. In addition to Jackson, Story at times turned to Thomas Jefferson and Henry St. George Tucker for insight on certain constitutional questions. He therefore engaged with the public’s trusted sources—even champions of theories that he found dangerous—to synthesize American constitutional development into a coherent defense of the popular foundation for American constitutionalism.

In addition to pairing his constitutional interpretation with trusted sources, Story offered basic rules for constitutional interpretation. These rules did not require a specialized legal education but could be understood by a novice student of political and legal thought. Story outlined three features of the Constitution as the basis for interpretation: the language used, the nature of the Constitution, and the objects of the instrument. These features, according to Story, could be combined to produce a common constitutional understanding in contradistinction to novel constructions of the constitutional text. In accordance with the aim of his Commentaries, these features prioritize constitutional arguments that support a national conception of popular sovereignty rather than social compact arguments that overprioritize state sovereignty.

Story’s reliance on trusted sources and elementary rules should be viewed as his response to the public desire for a clearer articulation of legal and constitutional principles. In offering these, Story sought to make the American constitutional order more accessible to the public. His method for providing this teaching is, of course, distinctive and comprehensive, and it is this method that has long been debated. If Story’s intention was to make fundamental legal and constitutional principles accessible to the American public, why would he choose to do this in a three-volume work that may require the aid of an abridgment to fully comprehend its lessons?

Story’s message in his Familiar Exposition suggests one answer. The structure of the original Commentaries is a path to constitutional education itself. That is, the structure and presentation of the Commentaries prepare the reader to advance to more complicated constitutional concepts. Story’s project is multifaceted, inviting readers in at different levels of preparation, but each reader is led to consider his place in the constitutional arrangement. In this way, Story’s project is individualized and reader-centered. In the Commentaries, Justice Story steps away from the judicial bench to walk alongside the general reader engaged in a deeper study of American constitutional principles.

There is a secondary, yet equally practical, result of Story’s civic education project. While he engaged in complicated, even philosophical, analysis throughout the Commentaries, he offered the work as a sourcebook of constitutional thought. Throughout his discussion of various constitutional questions, he provided full accounts of the interpretations of his contemporaries and past American jurists and statesmen, some of whom he agreed with and many of whom he did not. Thus, before providing his interpretation of certain disputed topics, he invited the reader into the debates—even presenting arguments in their strongest articulation when their proponents had failed to do so—so that the reader can be convinced not simply by Story’s persuasiveness but by the facts before him. Story intended his Commentaries as a resource for Americans to understand the origins and driving impulses of the sectional controversies they witnessed.

3. The Characteristics of Civic Education

Story offers a particularized and individualized approach to civic education. This may be surprising given that his method of instruction is through lengthy textbooks. As we have seen, Story intended his Commentaries to be read by a large number of citizens, i.e., anyone who fits within the category of “general reader.” Yet, he also seemed to recognize that the effect of his education would happen at the individual level—at each reader’s recognition of his or her role in the constitutional order. It is this move that appears to stand in stark contrast with past accounts that describe the Commentaries as intended only for lawyers and judges. Story makes clear that the general American reader can come to a deeper appreciation for the Constitution and a better recognition of the duties expected of an American citizen by engaging in this comprehensive study. It is this approach that makes Joseph Story a particularly useful guide for other jurists who seek to engage in civic education efforts. Story’s Commentaries exhibit the difference between public education—even a public education that seeks to promote a more informed citizenry—and civic education.

The difference between public education and civic education is critical but not always recognized in contemporary civic education efforts. Much has been offered to defend Story’s Commentaries as a public project—that is, one whose educational purpose is public in nature. However, a work can be publicly oriented without being civically oriented. Story’s Commentaries appear to be both. His efforts to improve the accessibility of constitutional law and legal reasoning point to the public nature of his project, while the content of his project confirms Story’s civic education efforts. Story’s efforts suggest that all civic education projects are necessarily public, but not all projects of public education are necessarily civic-oriented. A public project ensures that educational material is accessible to most of the population. A project of civic education ensures the accessibility of the material while directing citizens to consider their role—and their particular duties—within the political and constitutional community. A civic education is necessarily more active and perhaps more normative than a public education because it responds to a pressing challenge faced by the political community.

Story’s civic education project takes full shape in light of this distinction. By providing the American people with a constitutional education and offering several levels upon which to begin one’s education, Story sought to guide American citizens to better participate in their political community. This appears to respond directly to the known dissatisfaction of his day, characterized by the democratic calls advanced by social compact theorists and codifiers. Indeed, it is possible that popular criticisms of an inaccessible legal system hid a deeper concern that American citizens did not know how they were being called to participate in popular constitutionalism. Story’s project of civic education meets this deeper concern by providing a comprehensive evaluation of the constitutional structure. After experiencing this education, an American would better understand his place in the constitutional order and what actions he could take to support constitutional politics.

This distinction between public education and civic education allows us to evaluate and offer guidance to contemporary efforts at civic education. Kari and J. Clark Kelso have documented contemporary civic education efforts sponsored by the federal courts. Their analysis rests on remarks made by Chief Justice John Roberts in his 2019 Year-End Annual Report, where he noted that “‘[b]y virtue of their judicial responsibilities, judges are necessarily engaged in civic education’” (Kelso and Kelso 2021, pp. 490–1). As such, he was encouraged to see several civic education programs emerging across the country. According to the authors, these programs are united by the common project of improving “the public’s understanding and trust in democratic principles and civil discourse” (490). Kelso and Kelso identify six specific kinds of judiciary-directed civic education programs, ranging from classroom visits to federal courts, observations and interviews of “a wide variety of justice-system players,” school visits by judges and lawyers, teacher institutes, academic contests, and judicial learning centers (494). They call these programs the “primary channels for court outreach,” allowing for an increase in accessibility to the court systems to “‘revive the historic role of courthouses as vital and vibrant centers of a civically engaged community’” (Kelso and Kelso 2021, p. 501).While some of these programs, such as Operation Protect & Defend, highlight the duties of citizenship, many of them appear more public than civic in nature. A primary goal in these programs is to increase court “outreach” to familiarize students with court activity and legal processes. These programs, aware of a certain mystery around the courts system, seek to open the courthouses back up to the American public.

Yet, as their analysis reveals, Kelso and Kelso see a greater promise in these judiciary-directed programs. The courts can serve as a clear “model for civil, civic discourse,” which is severely needed in contemporary American politics (Kelso and Kelso 2021, p. 490). By opening the courthouses, observers could see how the “principles and practices” of court proceedings “perfectly describe how discourse and disagreement can be undertaken in a civil manner.” Courts prioritize listening to both sides, the merits of arguments, and “issue public, written opinions explaining the reasons for the courts’ judgment” (Kelso and Kelso 2021, p. 491). In short, courts prioritize the resolution of conflict through an established method of communication.

There can be no doubt concerning the decline in Americans’ ability to engage in civil dialogue. At the same time, however, civil dialogue cannot be the primary aim of civic education since civil dialogue is not the only—or primary—duty of citizenship. Moreover, it is possible to offer lessons concerning the necessity of civil dialogue without connecting this activity with the duties of U.S. citizenship. The need for civil dialogue appears to be a general good for democratic politics, not a duty particular to American politics. Civic education for the American polity ought to offer a constitutional orientation so that citizens can come to better understand their particular political community and the duties they owe to the continuation and improvement of that community.

Moreover, the judiciary could contribute to civic education projects by offering programs that reflect its position within the constitutional arrangement. As the governmental branch most concerned with the rule of law and the permanence of constitutional principles, the judiciary offers a different perspective from the more political branches. Joseph Story recognized this, too. In providing a constitutional orientation, Story’s project of civic education supported a central duty in republican politics: constitutional maintenance. Story concluded his Commentaries with a reflection on the essential task of constitutional maintenance, and this reflection suggests a particular concern that members of the judiciary may feel. Story’s final message to his readers warned that the future of American constitutionalism was ultimately in their hands. Civic education efforts, then, ought to be directed toward aiding the American people in the task of constitutional maintenance.

This appears to be a view shared by contemporary justices. Neil Gorsuch echoed this when he entitled his first book, A Republic, If You Can Keep It. While surely a reference to Benjamin Franklin’s famous line, this title appears to reiterate Story’s concerns as well, since it implies that each generation is entrusted with continuing the experiment of American constitutionalism. Likewise, in her 2013 speech, Sandra Day O’Connor insisted that “the skills and knowledge of citizenship are not handed down through the gene pool” (O’Connor 2013). Instead, each generation of Americans must learn the skills and knowledge required to sustain the American project of self-government. The judiciary is uniquely positioned to aid the American public in recognizing their role in constitutional maintenance because of its permanent tenure. Unlike the responsibility that is essential to the proper working of the other branches, the judiciary reminds the American people that political change ought to be paired with the maintenance of the constitutional order. Indeed, the judiciary particularly reminds Americans that true political progress cannot develop out of an ignorance of our constitutional order. Constitutional maintenance offers a path toward political improvement by ensuring the stability of the regime.

4. Conclusions: Educating from the Bench and/or the Role of Judges in Civic Education

This concern for constitutional maintenance allows us to glean two final lessons from Story’s Commentaries. As these lessons are particularly tied to his project of civic education, they have different audiences: the first is specific to the constitutional crises of the 1830s while the second, larger lesson can be applied to future generations. Throughout his abridgments, Story consistently articulated a foundation for American constitutionalism grounded in a national conception of popular sovereignty. This consistent defense met the central problem of his generation, which, according to Story, was a confusion concerning the foundation of American politics. For Story, this confusion led to an interpretive challenge uniquely fit for the second constitutional generation. As a question of inheritance, then, this challenge points directly to the task of constitutional maintenance.

Story addressed this challenge in the concluding remarks to his Commentaries. He began these remarks by reflecting on the uncertain future of the American Republic. Echoing Publius’s reflection on the “melancholy lessons of the past history of republics,” Story noted that even the first forty years of the American Republic had revealed dangers to republican governments. He therefore reminded his readers that republics are susceptible to certain dangers, including how “faction” or “[p]atronage and party, the triumph of a leader, and the discontents of a day” can outweigh “all solid principles and institutions of government” (Story 1833c, p. 757). These dangers are built into the nature of constitutionalism because it is “exceedingly difficult…to settle the foundations of any government upon principles, which do not admit of controversy or question.” Nevertheless, ascertaining and maintaining the foundations of constitutional government is a necessary task. A generation that inherits a constitution, and especially the first generation that inherits the constitution, must engage in both aspects of this task.

To guide the American people in this task, Story warned against expedient or simple political arguments that would only meet the immediate demands of the current generation. Instead, the task of constitutional maintenance is intimately connected with the task of understanding one’s political order. However, maintenance appears especially difficult because the principles that shape the foundations of government “are susceptible of infinite modifications; and theory”, which “too often deludes us by the attractive simplicity of its plans, and imagination by the visionary perfection of its speculations” (Story 1833c, p. 757). The challenge of constitutional maintenance, then, may involve the rejection of “simple theories,” especially theories that might meet the pressing needs of one generation without considering their effect on following generations.

Story paired this warning with an appeal for a slower pace in political reform. While constitutional maintenance is an activity dedicated to preserving and improving the constitutional order, certain reform movements motivated by “simple theories” could prove harmful to the reformers’ very goals. Like the framers of the American Constitution, Story was aware that the American people would come to know their constitutional order more fully as they engaged in politics, which would likely reveal flaws. While some of his readers may have been discontented by American democracy, Story sought to remind his readers that American constitutionalism was still relatively young. A longer time was required to show its full benefits and reveal the essential flaws that require constitutional revision. Moreover, and perhaps most especially, a true sense of necessary changes can only come from a comprehensive study of the constitutional order. Thus, to improve one’s political community, one must know its aims, structures, and the avenues available for reform.

This lesson concerning moderation and constitutional maintenance appears to mirror the educational aims of the pre-Marshall Court identified by Ralph Lerner. Like the pre-Marshall Court, Story articulated those “habits and teachings most necessary…for the maintenance of self-government,” which, in Antebellum America, was a full sense of the popular foundations for the American regime and the rights and responsibilities delegated by the people to their state and national governments (Lerner 1967, p. 131). For Story, the duty of constitutional maintenance requires ensuring that each generation understands the constitutional principles and political foundations of the regime. Thus, he sought to encourage continued constitutional learning, engagement with one’s community, and careful consideration of political action.

Story’s first lesson which pairs patience with continued constitutional education is perhaps unsatisfactory for democratic politics. Yet, it appears to be essential in a political community that is grounded in intergenerational governance and improvement, and Justices O’Connor and Gorsuch seem to hold similar views. Story can thus offer a second lesson to jurists engaged in projects of civic education. Contemporary justices ought to direct their educational efforts towards a defense of the constitutional principle of the rule of law and, as a result, ought to engage in these projects outside of their judicial opinions. This approach would better defend the concept of an independent judiciary than immediate defenses of the concept itself.

It is reasonable to think members of the federal judiciary might feel obligated to contribute to civic education efforts because of the structure of American constitutional government. As judges have become more of the authoritative voice on the meaning of the Constitution, they have recognized a complementary obligation to encourage the American people to take back ownership of their political community. From this perspective, Story may have recognized a need to direct public activity away from frequent changes (or defenses of state sovereignty) and towards constitutional maintenance. This could appear as a restriction on popular will at the hands of a federal judge but is better understood as a defense of the principle of the rule of law. Indeed, Story instructs his readers to care for the rule of law as the firmest foundation for the rule of the people. By promoting a rule of law system, Americans can be assured that their state and national governments are acting upon their constitutionally delegated powers. The Judiciary, as an intermediary body, seeks to protect the ultimate sovereignty of the people by prioritizing enumerated powers and a consistent interpretation of statutory and constitutional law.

At the same time, this places certain restrictions on members of the federal judiciary. This educational duty must be a secondary duty. One could imagine certain critiques against federal judges “educating from the bench” if they engage in public education efforts within their opinions. Thus, even if an educated citizenry is required to continue the American constitutional experiment and, as Justice O’Connor points out, defend the idea of an independent judiciary, there could be significant public opposition to judges providing that education in court opinions. The judicial concern for an educated public could backfire, causing further public suspicion of the federal court system.

Story can serve as a guide to jurists who feel the pull toward civic education. In approaching civic education, he seems to have created a divide between his project of constitutional education and his immediate—and primary—responsibilities as a sitting Supreme Court justice. While his Commentaries made appearances in the court record, often from advocates before the bench, his opinions were far more narrowly focused than his Commentaries. Perhaps unsurprisingly, his opinions, and especially his concurring opinions, are the primary example of the meticulous application of common law principles and complex legal analysis. While this complexity limited the accessibility of his judicial opinions, they provided the necessary legal and theoretical reasoning to reach just outcomes for the individuals before him. Legal opinions are surely instructive, but their primary purpose is the resolution of conflict and the correction of injury. Story’s educational project took place outside of his rulings—in the classrooms of Harvard Law School, the addresses he gave to members of the Bar, and the pages of the Commentaries of the Constitution and its abridgments.

This separation offers two strengths. First, it reinforces the function of the federal judiciary, prioritizing the resolution of individual cases and controversies and the steady administration of justice through the appeals process. Second, it offers to the American people the constitutional order, and especially their particular role in this order, as worthy of their attention. Story, as shown above, reminded the American public of their duties to the preservation of the American regime. He, like other jurists before him, recommended necessary qualities and particular actions to support proper self-government. Jurists who remind the American public of the popular basis for the constitutional order, and even perhaps identify ways that the American public can achieve reform, can help strengthen confidence in the regime. These civic education efforts require a medium that is as general as the lesson. Court opinions do not serve the purpose of these efforts because they are necessarily individualized, narrow, and case specific. An extended constitutional commentary is surely not the only medium fit for judicial civic education efforts, but Story’s Commentaries offer one example of successful civic education for the needs of a particular generation.

Contemporary efforts at civic education should also take this approach. Like Story’s age, today is a time of growing constitutional uncertainty, and some of this uncertainty comes from a misconception of the (im)possibilities for popular-directed political reform. Heightening the situation, contemporary America has an increasing suspicion of the federal judiciary. Judges who seek to engage in civic education face an uphill battle. But following Story’s division between his civic education efforts and his primary role as a member of the federal judiciary could be a path forward. This would avoid further public provocation when judges seemingly overstep their judicial duties—and avoid the danger of dicta that suggests a public ignorance of the constitutional order—and return to Story’s suggestion that judges and general readers could walk alongside one another as they come to a deeper understanding of the foundations of American constitutionalism.