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II. The Athenian Democratic Assembly v. Republican Judiciary of the United States

All forms of political rhetoric can be evaluated according to the Isocratean rhetorical ideal. This, however, contradicts Isocrates himself, who excepted court speech, or forensic rhetoric, from his ideal. As fleshed out in the Antidosis, a speech written several years after the Nicocles and its "Hymn to Logos," Isocrates believed court speech of his day too amenable to the corruption of self-interest and therefore not logos politikos. Moreover, because Athenian law courts did not create binding precedent with the force of law, and concerned themselves with the condemnation or exoneration of individuals charged with wrongdoing by a private citizen, forensic speech lacked the formal, institutional means to affect the polis at large through an alteration of legal structures. That said, because of institutional differences between Athenian courts and appellate courts in the United States, Isocrates' ideal applies to analyses of American "forensic" oratory as political speech. Unlike Athenian forensic oratory, which could only address broad constitutional issues tacitly in the form of personal cases of citizen versus citizen,32 American appellate tribunals, especially courts of last resort, often certify cases and questions for review specifically because of the broader constitutional and administration of justice issues the specific cases present and can limit review to those questions. In this way, the legal speech practiced before them can, in fact, be forensic and deliberative, exceeding the bounds of case or client into the realm of pure policy.

These differences between the fourth century Athenian Assembly and modern appellate courts as forums for constitutional change create within the appellate courts more opportunity for court oratory to be political speech in the Isocratean ideal. To address major constitutional questions, fourth century Athenians relied upon the popular Assembly. Judges and magistrates heard and ruled upon disputes regarding punishment for violation of laws within their designated jurisdictions. Appeals were possible to the Assembly for a trial before the popular jury.33 Regarding actual policy or constitutional issues (creation of laws or decrees), the general procedure was for the Council or Boule to recommend policies which were then voted on by the Assembly. Until the end of the fifth century, the resulting law (nomos) or decree (psephisma) then became binding.34 Because constitutional issues were ultimately resolved by the Assembly, the development of the Athenian body of laws, or constitution, was a democratic process advanced, in theory, by all free citizens.

This process is distinguishable from the path of constitutional development in the American system. The United States, pursuant to the Constitution and subsequent Judiciary Acts and Supreme Court cases (most notably, Marbury v. Madison),35 employs a system of constitutional transformation and interpretation which is republican in nature. A learned judiciary, without the input of a democratic or representative jury, rules on constitutional questions in the federal appellate courts and the Supreme Court. These rulings have the force of law; subsequent matters before the same tribunal are bound to the ruling.

In fourth scentury Athens the development and broad use of graphe paranamon, a form of appeal regarding the "legality" of an act of the Assembly, gave constitutional issues a more legal, rather than legislative, resolution. In a private action for graphe paranamon, one citizen charged that the law or decree proposed by another citizen in the Boule or Assembly contradicted the existing law of the polis.36 In this type of action, the jury decided whether to punish the accused for proposing an "unconstitutional" law. This compares to the American system of judicial review of court decisions or legislation for constitutionality. Yet, despite this innovation, the fact that popular sovereignty controlled legal and constitutional change in fourth century Athens makes it very different from the American system. In Athens the will of the demos, as influenced by an elite, trained speaker, was the constitution. While laws and decrees were codified and reduced to writing, they could change abruptly depending on the influence of a speaker and the will of the mass Assembly. This gave more influence and power to the "constitutional action" of a speaker, yet decreased the speaker's ability to promote enduring policies, to practice "statecraft," because the policies could change according to the sovereign and changeable popular will. Ober argues that the rule of law and the will of the people would not be exclusive concepts to an Athenian's mind, which could embrace the dual sovereignty of its demos and the nomos. But because the will of the demos, with relative ease, could reverse the existing constitutional structure, the will of the people wielded the most power.38

By contrast, in the American constitutional system, a republican judiciary of appellate judges appointed by an executive with the advice and consent of the people's elected representatives wields the power to alter or interpret the constitutional rubric.39 Their power to do so is constrained by two aspects of Anglo-American jurisprudence: stare decisis and the rule against fomenting litigation for advisory judicial opinions. In the first aspect, judges are constrained by the prior decisions of the judiciary. In this sense, because interpretation of the Constitution is bound to prior rulings, there exists in the American system judge-made law, a concept foreign to Athenian jurisprudence. Second, American appellate judges, unlike the Athenian Assembly, must wait for a constitutional issue to percolate up from a lower court's resolution of a genuine conflict between the state and a citizen or, in a private civil action, between private entities. Both the existence of stare decisis and the rule against fomenting litigation or seeking advisory opinions in constitutional cases limit the republican judiciary's interpretation or alteration of the constitutional rubric. This has two effects. It emphasizes the rule of law, increasing the constitutional relevance of legal oratory because such oratory influences what the law is. And it results in a static Constitution, increasing the power of legal oratory to make a significant difference when it results in an actual change in that Constitution. As such, the American judicial and jurisprudential system in which Webster practiced his legal oratory rendered that oratory more likely to be political speech according to the Isocratean ideal. Because of the institutional differences, American legal oratory is more deliberative than purely forensic, avoiding Isocrates' admonition that forensic speech cannot be logos politikos. American legal oratory can be statecraft in that artful, moral, and practical legal speech can result in significant and enduring constitutional change. This is especially true when practiced by an orator like Daniel Webster whose political ideology and agenda, formed from childhood, influenced his court speech.

III. Applying the Rhetorical Ideal to Webster's Legal Oratory

In his definitive treatise on Webster's career before the Supreme Court, Maurice Baxter places Webster, at the beginning of his federal practice, in the nascent period of American constitutional law, the very beginning of the American struggle to decide what the Constitution meant to the actual, day-to-day governance of a growing federal republic. He writes:

The constitutional issues Baxter catalogues appear important to the functioning of the country, but mundane and technical. Matters involving the limits on state power over corporate charters as presented in the Dartmouth College case, the scope of competing jurisdictional authority over the country's navigable waters at issue in Gibbons v. Ogden, and the regulation of interstate trade at the core of Thurlow v. Massachusetts seem dry, legalistic and hyper-technical. But these determinations were critical to a young country's application of its political charter to the practicalities of its growth and ultimate viability. The Dartmouth College case, Gibbons v. Ogden and Thurlow v. Massachusetts, three of Webster's most famous cases, dealt with practical matters, but they dealt more importantly with the primary concern of any democratic or republican government: the gulf between the preservation of liberties and the preservation of order which the Constitution was designed to bridge.41 When Webster's legal oratory in these cases was artful, principled and pragmatic according to Isocrates' rhetorical ideal (Dartmouth and Gibbons), it successfully persuaded his audience (the courts) to adopt his conservative, pragmatic vision of the Constitution. It was logos politikos and contributed to the shaping of constitutional and national identity for the newly united states. And when Webster's oratory failed the Isocratean ideal (Thurlow), the Federalist conception of the Union he tried to craft began to crumble under the weight of new political imperatives.

A. The Dartmouth College case

Webster's first contribution to shaping American constitutional and national identity through his legal orations came in his argument before the Supreme Court on March 10, 1818, in the Dartmouth College case.42 In 1815, the members of the Board of Trustees of Dartmouth College, predominantly Federalists, were disputing with the president of the college, John Wheelock, the founder's son. In an end game around the Board, Wheelock sought help from New Hampshire Republican Democrats who passed legislation packing the Board with members of their own party and converting the college into a university subject to state oversight.43 The existing Federalist Trustees filed suit claiming that the legislative action violated their charter, deprived them of property rights, and, in so doing, violated the New Hampshire and United States constitutions. The Trustees were unsuccessful in the state courts of New Hampshire and appealed to the U.S. Supreme Court. Their alumnus, Daniel Webster, delivered the argument on behalf of the Trustees.

The dispute in this case had, as its genesis, a dispute between Federalist policies in favor of a strong, centralized national government and the Republican Democrats' efforts to enforce states' rights, the controlling struggle of Daniel Webster's political career and the defining struggle over constitutional and national identity. Was the United States going to be a unified whole controlled by a strong federal government or a less restricted union of sovereign states? In arguing that the actions of the New Hampshire legislature violated the Constitution, Webster, through his legal oratory, crafted a Federalist identity for the Constitution and the nation. His speech satisfies the Isocratean rhetorical ideal because it was artful in the weight of his legal argument and the strength of his prose; it was principled in that it extolled the mythology of the Declaration; and it was practical because it presented Webster's version of the ramifications of the legislative action in dispute as contrary to the goals and virtues of his audience (the Court) and the people it would affect.44

The artful aspects of the Dartmouth College speech are manifold. Webster manipulated rhetorical tropes and provided the Court with precise legal scholarship. The audience for Webster's legal oratory was always a republican bench moved by a combination of eloquence and legal erudition. While Webster's legal speeches before the Supreme Court were all published by himself as well as by contemporary observers, thus having a political effect among the reading population, the influence of his legal oratory occurred first and foremost with the judiciary that shaped the meaning of the Constitution. Only by persuading this small audience of political actors on the bench could Webster's legal oratory be logos politikos. Webster's artistry in the Dartmouth case provoked constitutional action.

Webster argued that the legislature violated its own constitution and Bill of Rights, using strategies common to epideictic oratory. He traced the long history of corporate grants and land charters devolving from grand and historical sources. He asserted that throughout the history of the common law such charters could not be imposed, altered, or removed without the consent of the prospective or existing charter holders. Here, Webster employed antithesis, juxtaposing royal, feudal decrees with the historically "inconsequential" nature of an institution like Dartmouth, stating that the crown lacked the power to alter or abolish charters and so did the New Hampshire legislature:

Thus, through the use of comparison, analogy and juxtaposition, Webster emphasized the enormity of the legislature's transgression: if king, crown and constitution are not empowered to impose or revoke corporate charters, neither was the legislature of New Hampshire.

Webster made this point as well with his "artistic" command of legal precedent. He painted a historical and legal picture of the protected right to create the legal fiction of a corporation and the rights attendant thereto "from Magna Carta to the present moment." Webster provided all of the legal precedent from Elizabeth's Statute forward. While this legal knowledge is rightfully attributed to the preparers of the brief in the lower courts on which Webster relied, his interweaving of the precedent with his juxtaposition and metaphor is what gives the legal aspect the further weight of art.

Another example of Webster's ability to weave precedent with a compelling metaphor was in his comparison of the Dartmouth College charter with a charter for a hospital. While Eleazar Wheelock's original intention was to educate the Indian tribes and train them as missionaries, the charter moving the college from Connecticut to New Hampshire was funded by land grants and contributions premised upon the college expanding its raison d'etre to include the education of the English-speaking citizens of the state. Nevertheless, Webster painted this institution as an eleemosynary one charged with the private betterment of the public welfare, like a hospital. In so doing, Webster created sympathy for an institution which could have been characterized as a bastion of privilege:

Again, this attempt to metaphorically curry sympathy for the college is placed within a legal argument.

Perhaps attempting to appeal to the justices' loyalties to their alma mater, Webster employed another "big versus small" antithesis by arguing:

Through this artful weaving of rhetorical tropes among historically significant precedent, Webster created a David v. Goliath image of an institution besieged by greater powers exceeding their historical limitations. (This is, of course, ironic because the result of his argument is the strengthening of federal powers under the Constitution and to limit state action.48) By arguing this point, Webster declared the unifying power of the Constitution and its role as protector of a national culture against the meddling states. But the weight of Webster's artistic flourishes in this speech was reserved for his epilogue. Having established, by the foregoing topics, that Dartmouth was a small, relatively powerless institution devoted to the public good, Webster expanded on this theme in the peroration by use of enthymeme, describing the pernicious long-term effects on all such defenseless yet ultimately important institutions if New Hampshire was allowed to alter its charter:

According to Webster, this tiny David, if slain, would mark the downfall of all the protectors of knowledge. The federal government, through use of its constitutional power, must protect the institutions of the country from the ravages of the power of the states.

Webster's image of the federal constitutional government as one promoting and protecting culture from the isolating efforts of the states was conjoined with his use of the contemporary mythology of America, from both a Federalist and Republican-Democratic perspective. This mythology was found in the symbolic relevance of the Declaration of Independence. In the Dartmouth speech, Webster did not mention the Declaration specifically, but he structured his argument around a recitation of rights followed by a statement of grievances very much in the style of the Declaration. Moreover, his choice of words resonated with symbolic weight for an early nineteenth century ear attuned to any declaration that the rights of man have been usurped by a "foreign" power without consent.

This is the moral or principled aspect of the Dartmouth speech in accordance with the second component of Isocrates' rhetorical ideal. Webster's use of stylistic allusions to the Declaration is an example of displaying his moral or political worthiness to speak, announcing himself as a man of the Revolution, an American, guided by the most sacred of American socio-political principles. It also appealed to his audience, the John Marshall-led Supreme Court dominated by Federalist jurists. Webster's word choice and framing of the issues in the Dartmouth case referred to the Declaration and gave his argument the credibility communicated by the common values contained in that document. Webster first evoked the Declaration in framing the issue before the Court: "[W]hether the acts of the legislature of New Hampshire . . . are valid and binding on the plaintiff, without their acceptance or assent." This phrasing harkened the invalidation argument of the Declaration which posited that Parliament had no legislative authority over the colonies because that body contained no representative from the governed; Parliament legislated without the sovereign consent of those it attempted to control.

Webster spoke of the rights of a corporation as Jefferson wrote about the natural rights of man. Dartmouth had "rights, powers, liberties and privileges"; the trustees had "rights, properties and power." Discussing whether or not such rights, powers and privileges could be abrogated, Webster argued that such an abrogation was wrong because it occurred:

Here, Webster cloaked the New Hampshire legislature in the guise of Jefferson's parliament, accusing that body of exacting their will without the authority to do so. While Jefferson's parliament may have had authority over the colonies, it had no authority to impose taxes or control commerce when duly constituted legislatures existed in the colonies for that purpose. For Webster, the New Hampshire legislature deprived a private institution, with its own constitution and legislative body, of valuable rights while having no jurisdiction to do so. Webster's framing of the argument and choice of words evoked Jefferson's arguments and the founding document of the country.

Again, Webster evoked the style and sound of the Declaration when he stated the Trustees' catalogue of grievances against the New Hampshire legislature. Just as Jefferson announced the usurpations of the Hanoverian monarch in a list form with unembellished vocabulary and terse rhythm for effect, so did Webster air his clients' grievances:

These emphasize the grievances with the shortest, plainest sentences in the speech to great effect. This is more than just stylistic and good oratory. It evokes the catalogue of grievances in the Declaration in form and in content of rights trampled and property seized. By using a format borrowed from the Declaration, the most revered text of the time, Webster infused his legal oration in the Dartmouth case with credibility. By recalling in every listener's mind the cadences, lyrics, and rhetoric of revolution from the founding document, Webster's oration was a principled speech appealing to the highest values of his audience.

Satisfying Isocrates' third component, the Dartmouth speech also was pragmatic. It advocated the politically possible in furtherance of the goals of his audience, beyond party objectives. Webster achieved this by promoting the intellectual life of the nation and by protecting charitable works. These are the goals of a civilized community, and by showing how ruling in his clients' favor would promote these ends, Webster added a pragmatic argument to his legal ones. He told his audience that along with the actual legal arguments, a pragmatic rationale existed. By acting in the way he suggested, his audience would do more than comply with the law; they would act in furtherance of their better selves.

Webster's method was to elevate the importance of Dartmouth to that of a charitable institution and explicitly and implicitly argue that it merited the Court's sympathy and protection because of this station:

Thus, Webster gave the Court another enthymeme: if you support the college and protect its sanctity, then you protect the best among us and promote the welfare of those who cannot or are unable to protect themselves.

This theme is furthered in his exhortation to the Court that not only is the college a charity but it is the bastion of the country's intellectual life. A vote to protect it was a vote in the best interest of the nation's development of culture. Decrying the New Hampshire legislature's acts, Webster said:

A report of the concluding remarks in Webster's peroration related the emotion with which Webster conveyed this idea. Omitted from Webster's own account of the speech, Chauncey A. Goodrich wrote that Webster closed the speech, telling the Court:

While this transcription is likely apocryphal, reported decades after the speech, scholars are convinced that it accurately reflects the tone and sentiments of Webster's closing remarks. Approaching the form of encomium in an epideictic oration, the virtues of Dartmouth are elevated to almost mythic importance. Precedents and procedure be damned. Rule against Dartmouth College and rule against science, literature and culture itself. Art, principle, and the politically possible all converged in Webster's speech. It gave the Court a mandate for action which helped create an America that not only allows the federal government to trump state action, but promotes a Frontier Athens where science and the arts are part of a national identity. The Court ruled in favor of the College.

The Dartmouth case is the clearest example of Webster's success in using court oratory as political speech. In the hands of another lawyer without the ability to see a legal conflict as an opportunity to promote political action, that case could have been a dry conflict over a state's right to regulate corporations; important, but limited in scope, and not the sort of dispute to provoke the Court's action limiting state power. For Webster, the legal conflict was the necessary kernel for the larger constitutional debate. The Federalist versus Republican Democrat squabble, the conflict of state and federal power under the Constitution, and the involvement of his beloved Dartmouth College, all led to artful, principled and pragmatic legal oratory in the Isocratean mold. In arguing that case, Webster appealed to the revolutionary and constitutional sensibilities of the day. Webster applied his rhetoric to arguments that were principled and pragmatic, extolling virtues and promoting goals which comported with the socio-political ideology of his audience.

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32 See e.g. The Debate on the Crown From Against Ctesiphon of Aeschines and Address on the Crown of Demosthenes, in Greek Orations: 4th Century B.C. 120-209 (W. Robert Connor ed., Waveland Press, Inc. 1987). In the case at issue in those orations, Aeschines brought suit against Ctesiphon who had presented a petition before the Assembly to award a crown to Demosthenes for his service to Athens. Aeschines charged Ctesiphon for unconstitutional activities because such a crown was technically improper at that stage in Demosthenes' career. This was in fact nothing more than a political attack by Aeschines against Demosthenes, his political rival.

33 Douglas M. MacDowell, The Law in Classical Athens 30-32 (Cornell U. Press 1978); see also Ober, supra n. 11, at 55.

34 Ober, supra n. 11, at 8.

35 Marbury v. Madison, 5 U.S. 137 (1803).

36 MacDowell, supra n. 33, at 51; Ober, supra n. 11, at 109.

37 Ober, supra n. 11, at 299.

38 Id. at 301.

39 Constitutional rubric is meant to include the written constitution, its amendments, and the cases interpreting them, all of which constitute "constitutional law."

40 Maurice G. Baxter, Daniel Webster and the Supreme Court 1-2 (U. Mass. Press 1966).

41 Robert F. Dalzell, Jr., Daniel Webster and the Trial of American Nationalism 1843-1852, at xii-xiii (W.W. Norton & Co. 1973).

42 Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).

43 Maurice G. Baxter, Daniel Webster: The Lawyer in Daniel Webster, The Completest Man 138, 143-44 (Kenneth E. Shewmaker ed., U. Press New Eng. 1990).

44 Analyzing Webster's court speeches is difficult because there was no system of formal, regulated, official transcription. The available texts are reports of gallery members or revised versions prepared by Webster himself for publication. We cannot hear exactly what his judicial audiences heard.

45 Daniel Webster, The Writings and Speeches of Daniel Webster vol. 10, 202 (Little, Brown & Co. 1903).

46 Id. at 204.

47 Id. at 210.

48 In this case, the right of the state to regulate corporations if the regulation violates the constitutional provision prohibiting state laws from interfering with contractual obligation.

49 Webster, supra n. 45, at 232.

50 Id. at 221.

51 Id. at 199.

52 Id. at 203-04.

53 Id. at 221.

54 Daniel Webster, The Papers of Daniel Webster: Legal Papers vol. 3, 153-54 (Alfred S. Konefsky & Andrew J. King eds., U. Press New Eng. 1989).

Fall 2006 ~ Rhetoric & Argumentation

• With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor
• Court Speech as Political Action: Isocrates' Rhetorical Ideal and the Legal Oratory of Daniel Webster
• Classical Persuasion through Grammar and Punctuation
• Philosophy v. Rhetoric in Legal Education: Understanding the Schism Between Doctrinal and Legal Writing Faculty
• Rhetoric Theory and Legal Writing: An Annotated Bibliography
• Brush Up Your Aristotle
• Advocacy and Emotion
• Law as Rhetoric, Rhetoric as Argument
• A Basis for Legal Reasoning: Logic on Appeal
• Effective Research Assistance and Scholarly Production