Contending for American Nationhood

The irreconcilable claims of Compact Theory and Nationalist Theory underlay countless constitutional debates, including recognition of a federal common law. The push for federal common law jurisdiction and the assertion that American nationhood preceded the states come together in the thoughts of Supreme Court Justice Joseph Story.

Contending for American Nationhood: Joseph Story and the Debate Over a Federal Common Law offers a study of one of the early republic’s fiercest legal debates, one of the Supreme Court’s most understudied jurists and constitutional theorists, and the enduring tension between two irreconcilable understandings of the American union. It explores the conflict between two competing theories of the American union in the early years of the republic: the Nationalist Theory, which posited that the union was the creation of the national American people, and the Compact Theory, which portrayed the union as a compact between the peoples of the several states who had each separately decided to join to form the union. Benjamin Clark employs this underlying debate as a framework for understanding the debate over federal common law in the late 18th and early 19th centuries. The book gives particular attention to the constitutional thought of Supreme Court Justice Joseph Story, examining how these two seemingly-separate issues—the federal common law question and the existence of American nationhood—came together in Story’s constitutional theory.