Webster, Daniel (1782–1852)

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WEBSTER, DANIEL (1782–1852)

As a leading lawyer and politician for forty years, Daniel Webster influenced constitutional development as few others have. When the young New Hampshire representative arrived in Washington in 1813, he immediately became a spokesman for New England interests and remained so until the mid-1820s despite an interruption of congressional service (1817–1823) upon moving to Boston. For most of the time from 1827 to his death in 1852, he was an eloquent nationalist in the senate. Except for two periods as secretary of state under Tyler and Fillmore, he spent the last quarter-century of his life in that body, expounding the principles of a perpetual Union and a flexible Constitution. In either role, sectionalist or nationalist, he applied constitutional ideas to political issues with uncommon ability.

During the early years his federalist partisanship and loyalty to a commercial constitutency led him to oppose Republican policies of embargo and war. Using economic coercion to maintain maritime rights, he believed, intolerably stretched the power to regulate commerce, indeed, it destroyed commerce. And prosecuting an offensive war against Britain caused other constitutional errors: misuse of militia, proposals for federal conscription, encroachment on states ' rights. Though not a delegate to the hartford convention, Webster approved its resolutions. Later he sought, unconvincingly, to dissociate himself from it. His sectionalism persisted when he opposed the postwar trend toward a protective tariff (1816–1824). Again he voiced a strict constructionist interpretation of the commerce clause to promote low rates desired by merchants and a system of laissez-faire in the first phase of industrialization.

In the late 1820s, he shifted to a nationalist position concurrently with john c. calhoun's shift in the opposite direction. In behalf of rising manufacturers, he joined henry clay in advocating governmental policies to achieve economic growth and American self-sufficiency. No longer did he oppose use of the commerce power for broad goals. When South Carolina nullified the tariff of 1832, his oratorical duel with Calhoun provided an opportunity to reiterate more comprehensively his constitutional thought, dramatically set forth in his earlier debate with robert hayne. Beyond the tariff question, he countered the doctrines of state sovereignty and nullification with the concept of a perpetual Union, created by the people, not the states, and composed of two spheres of authority, national and state, both responsible to the people. In event of conflict, Article VI of the Constitution required national supremacy; and the Supreme Court had long performed its proper duty of upholding that rule.

Soon slavery became the focus of politics. Ever since writing a memorial on the Missouri question in 1820, Webster had advocated a national power to prevent western extension of slavery; but he conceded Congress could not touch it in existing states and he soft-pedaled the moral question. Subsequently he opposed annexation of texas and further territorial acquisitions from Mexico, fearing they would disrupt the Union. When, in the great congressional debate of 1850, controversy reached a climax, he preferred compromise to save the Union instead of legislation against extension of slavery, constitutionally possible though it was. Antislavery forces attacked him furiously—the more so when the fugitive slave law, a part of the compromise, appeared to violate civil liberties. As senator, he had inclined toward trial by jury for suspected runaways; as secretary of state he insisted upon strict observance of the statute prescribing summary process.

He was very active in the Supreme Court as well as in Congress. Altogether, he argued 168 cases, of which twenty-five involved constitutional questions. He won about half and influenced doctrinal development even in some he lost. Regularly, he set forth nationalistic arguments to limit state power in a day when most congressional powers were dormant. More successful when john marshall was Chief Justice (to 1835) than when roger b. taney presided, he made a deep impression on the governmental structure. Of the cases strengthening nationalism, mcculloch v. maryland (1819) stands out. Here, though overshadowed by william pinkney, Webster contributed to a definition of the Union identical to that in his Senate speeches against nullification. And he introduced the aphorism that the power to tax involves the power to destroy. osborn v. bank of the united states (1824) provided opportunities to advocate expansion of federal court jurisdiction in the whole field of corporate rights.

The first commerce case the Court heard involved steamboat monopoly (gibbons v. ogden, 1824). Contending for an exclusive congressional power over interstate commerce, Webster would have been satisfied with a rule of partially concurrent power. Marshall sympathized with the first option but did not rest his decision on either formula, therefore postponing a judicial guideline. Over the next twenty-five years, Webster participated in several other cases, such as the license cases (1847) and the passenger cases (1849), in an unavailing effort to obtain an exclusive-power decision. At last, in cooley v. board of wardens (1851), his protege, Justice benjamin curtis, spoke for a majority in laying down a partially concurrent-power standard which preserved about as much exclusive national authority as Webster wished. Cooley remains good constitutional law.

Webster's nationalism was not an abstract idea. He connected it with the sanctity of property rights as the very foundation of a dynamic economy. Best illustrating this belief are the contract clause cases in which he appeared. dartmouth college v. woodward (1819) is a classic in the long history of vested rights shielded from state interference. He relied upon the contract clause of the Constitution as if it were an early version of substantive due process of law. Though the contract clause, even the concept of vested rights of property, has declined, the notion of active judicial defense of individual constitutional rights flourishes in the area of civil liberties. The Dartmouth case was only Webster's first of several dealing with the contract clause.

Webster's career reflected the junction of personal capacity with a favorable setting to establish nationhood and to invigorate a capitalist economy. Still, he may have been flawed by moral oversights and may have encouraged an inequitable distribution of wealth and privilege. Perhaps his contemporaries sensed weaknesses such as these as they passed over him in electing their presidents.

Maurice G. Baxter
(1986)