Daniel Webster and the Unfinished Constitution by Peter Charles Hoffer (review)

Historians long have recognized Daniel Webster as a talented early-republic lawyer and as a leading antebellum politician. Peter Charles Hoffer adds a third distinction. In Daniel Webster and the Unfinished Constitution, he argues cogently that Webster belongs alongside U.S. Supreme Court justices as a key theorist of constitutional interpretation.

Hoffer's analysis begins with three "gaps" (vii), or "unanswered questions" (2), in the Constitution. First is federalism: The document only vaguely lays the boundary between national and state power. Second, it only vaguely lays the boundary between government's power to promote public interests and legal protections of private rights. Finally, it does not indicate whether law, institutionalized in courts, or democratic politics, institutionalized in Congress and the presidency, reigns supreme in constitutional interpretation.

These gaps did not much bother the framers. They considered incompleteness and flexibility essential to a document that would serve an evolving union. But the next generation of lawyers and politicians wanted to answer those questions for all time. They wanted an "immutable" (2) constitution.

Webster, Hoffer demonstrates, took on that project of filling in the gaps. Four of the book's seven substantive chapters (excluding a biographical first chapter) analyze Webster's briefs and court reporters' accounts of his oral arguments in cases before the Supreme Court. With increasing intentionality, Webster used these cases as "occasion[s] to discourse on the three constitutional issues left unfinished" (26).

Hoffer begins with Dartmouth College v. Woodward (1819). In defending the college's trustees against the New Hampshire legislature's attempt to revise its charter, Webster weighed in on each of the three constitutional gaps. The national government was supreme, he reasoned, so a federal court could adjudicate the matter. Individual property rights were inviolable, so the state could not divest the trustees of their college. The law superseded politics, so Democratic-Republican legislators could not redefine rights to the detriment of Federalist trustees.

Though a secondary concern in that case, filling in constitutional gaps gradually became "Webster's primary purpose" (52) in court. Only months later, in McCulloch v. Maryland (1819), he made it more central. His defense of the Bank of the United States against Maryland's power to tax rested on expansive "implied" (62) federal powers that he argued the courts must outline. It also rested on an assertion that "the Constitution's purpose" (61) was to shield individuals' rights, including property rights facilitated by the bank, from governments. In Gibbons v. Ogden (1824) and Charles River Bridge v. Warren Bridge (1837), he focused even more on completing the Constitution.

Through these cases, the first three of which Webster won, his jurisprudence became precedent. Hoffer's key observation is that Chief Justice John Marshall's decisions consistently "tracked Webster's brief[s]" (54), often "agreeing with every point" (87). Hoffer thus makes the methodological argument that lawyers deserve attention and credit for legal innovations typically attributed to judges. Historians should spend more time with their briefs and with court reports in tracing the origins of constitutional law.

Hoffer highlights connections between Webster's courtroom arguments and slavery. None of the cases directly concerned it, but most either affected or reflected the escalating debate. McCulloch refined federalism while Congress worked toward the Missouri Compromise, making that case "part of the national referendum on states' rights" (60). In Gibbons, Webster tied property rights to free, not enslaved, labor.

As a politician, Hoffer continues, Webster brought his jurisprudence to Congress. Two chapters examine his application of it in Senate debates surrounding slavery. During the debate of 1830 over land policy and tariffs, South Carolina's Robert Y. Hayne argued that federal and state authority, public and private interests, and law and politics "converged on the protection of slavery" (110). Webster responded with his usual argument for the division of all three pairs. Most important, because the national government was separate from and superior to the states...