A Path Forward in Common Law? Story on Racial Justice and Indigenous Sovereignty

• In Event: The Supreme Court in American Constitutional Development

Abstract

The Antebellum period’s expansion of slavery is generally considered a constitutional dead-end for racial justice. While some political commentators and reformers argued that the Constitution could be read as an anti-slavery and thus pro-freedom document, states’ rights advocates secured constitutional advances through congressional compromises, and the potential for constitutional amendments—the path for change—seemed unlikely given public opinion. Joseph Story provides another path forward to consider the constitutional issues of race and sovereignty. This paper will analyze Story's attempts to articulate a national conception of popular sovereignty that is broad enough to confront the federal issues of race and indigenous sovereignty while remaining rooted in the history and tradition of American constitutionalism. As such, the paper will argue that Story's positions in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) provide a fuller account of the interplay between the common law and natural rights philosophy in American constitutionalism. Consequently, this interplay provides lessons for federal issues, which allow us to better understand the dilemma that confronted Story in Prigg v. Pennsylvania (1842). While Story's constitutional interpretation may not have gained political success during his lifetime, he offers an alternative account of American sovereignty to salvage the meaning of consent in the Antebellum period in order to support a path forward that is consistent with American history and tradition.

Author

• Brigid Flaherty Staab, Assumption University