Court Speech as Political Action: Isocrates' Rhetorical Ideal and the Legal Oratory of Daniel Webster
[B]ecause there has been implanted in us the power to persuade each other and to make clear to each other whatever we desire . . . we have come together and founded cities and made laws and invented arts . . . . For this it is which has laid down laws concerning things just and unjust, and things base and honorable . . . . It is by this also that we confute the bad and extol the good. Through this we educate the ignorant and appraise the wise; for the power to speak well is taken as the surest index of a sound understanding, and discourse which is true and lawful and just is the outward image of a good and faithful soul.1
When public bodies are to be addressed on momentous occasions, when great interests are at stake, and strong passions excited, nothing is valuable in speech farther than as it is connected with high intellectual and moral endowments . . . . True eloquence, indeed, does not consist in speech . . . . Words and phrases may be marshalled in every way, but they cannot compass it. It must exist in the man, in the subject, and in the occasion . . . . This, this is eloquence; or rather it is something greater than and higher than all eloquence, it is action, noble, sublime, godlike action.2
Each time an American lawyer speaks before a court, that lawyer is a political agent. Advocating an interpretation of the Constitution, a statute, or judge-made common law is advocating an interpretation of the formal statement of the political will of the governed. As such, by interpreting the law or offering a translation of its meaning, the lawyer transforms the codified indicia of shared American values, altering the national identity. In this sense, American legal oratory, primarily before appellate courts, is fundamentally more than advocating the interests of private economic entities, prosecuting violations of law or protecting individual rights. American legal oratory can be statecraft: innovative speech which promotes political action, and creates or transforms the principles by which citizens are governed.
In this essay, I examine this power of legal oratory to be political speech by analyzing select court speeches of Daniel Webster as political texts. As a model for this rhetorical analysis, I use the classical standard of logos politikos, speech in the interest of the state, posited by Isocrates, which I refer to as Isocrates' "rhetorical ideal." Analyzing Webster's rhetoric according to this Isocratean ideal appears appropriate because of the historical and philosophical parallels between the two men. Webster was the most prominent legal orator of his time, a time when America discovered ancient Greece and was in the full grip of the Romantic embrace of antiquity.3 Webster's speeches are replete with classical allusions, his friend Edward Everett held the first chair in Hellenic Studies in America,4 and Webster's first famous congressional speech promoted the cause of Greek independence.5 Yet, the philosophical and political parallels between Webster and Isocrates are even more compelling than their comparable political roles within their respective democracies. They demonstrate how Isocrates' theory of effective political speech illuminates Webster's success and failure in speaking politically as a lawyer. Both men were conservative pragmatists. Both men would have bristled at being called a democrat. And both supported unpopular policies they believed would preserve their homeland. Moreover, both Isocrates and Webster wielded their influence and prestige in a period after a "golden age" of constitutional reform during which the governed were compelled to decide their future political direction relative to divisive issues. While Webster was often called the Demosthenes of America because of his oratorical prowess, the content of his speeches and their political effect made him the Isocrates of America.
In order to apply the analytical model of Isocrates' rhetorical ideal to Webster's court speech, I will first describe what Isocrates wrote about his ideal—gleaned from disparate sources—and state his guidelines for speech in the greater service of the polis. The greatest difficulty in applying a 2,500- year-old model to nineteenth century oratory is, of course, controlling for the political and legal differences of the two eras. Therefore, the second part of this essay will describe, briefly, those differences and show that even Isocrates might be surprised at how applicable his rhetorical ideal can be to speech before American appellate tribunals. With the rhetorical ideal established, and the institutional discrepancies explained, I will then turn to a consideration of three of Webster's most important Supreme Court arguments: the Dartmouth College case,6 Gibbons v. Ogden,7 and Thurlow v. Massachusetts.8 I will apply Isocrates' rhetorical ideal to that oratory, and draw some conclusions about the success and failure of Webster's logos politikos. This essay concludes that in satisfying a classical ideal for court speech in service to the speaker's community beyond the primary considerations of case and client, Anglo-American legal oratory can in fact be political speech in a rule of law democracy by advocating the creation and transformation of governing principles and, in the process, national identity.
I. Isocrates' Rhetorical Ideal
Isocrates proposed that rhetoric must be practiced as logos politikos, or political speech in the service of the speaker's political community. Principled, pragmatic, and eloquent political speech is the art which creates a collectivity, defines its purpose, and protects its interests. In order to achieve these ends, Isocrates established a "rhetorical ideal," which states that artful rhetoric fulfills its necessary role as logos politikos when it is artful, moral, and pragmatic. In so requiring, Isocrates established a middle ground between rhetoric as a tool only for achieving the personal interests of the speaker, and rhetoric which argues only philosophical and moral principles without regard for practical result. It is an ethico-performative ideal, where the dual obligations of art and ethical pragmatism are inseparable and feed each other. This is a break from both Platonic antagonism toward rhetoric and in contrast to Aristotle's taxonomic, institutional treatment of it.9 As Ekaterina Haskins has written:
Isocrates defends a program of civic education in which the traditional Greek association between speaking and acting . . . is upheld. Isocrates thereby promotes a performative view of the rhetorical training as a mimesis of civic excellence . . . . Whereas Isocrates gives us a vision of performance as a lifelong pursuit of political honor and recognition, Aristotle considers it but a stepping stone toward the life of leisured pursuits and contemplation unburdened by exigencies of public performance.10
By balancing the ethical and the performative, Isocrates carved a template for political speech which, laid over the works of ancient and modern political oratory, can trace a speech's power to be statecraft. Speech can be statecraft because it has rhetorical power, enduring relevance, and long-term practical utility. When it does, speech shapes policies and directly or indirectly incites action contributing to the creation or re-creation of the state's identity.11
There is no extant speech dedicated solely to explaining Isocrates' analysis of artful rhetorical methods or how rhetoric serves the ends of discovering truth. Rather, various speeches contain, in varying amounts, evidence of his rhetorical curriculum and philosophy. These surviving speeches, including the Antidosis, Panegyricus, Panathenaicus, and Against the Sophists,12 all address issues in addition to his educational and philosophical theories. This comports with Isocrates' ideal of rhetoric as logos politikos, political speech for the civic arena; any speech which had as its sole purpose the promotion of his school, or argued solely his theory of rhetoric as a political tool, would be contrary to this ideal.13 But in the "Hymn to Logos," contained in his speech to Nicocles, Isocrates instructed the King of Cyprus on the power and primacy of rhetoric.14 Other speeches address Isocrates' theories of how rhetoric should be employed, who should practice it, what ends it can serve, and the tension between the rhetorical influence of gifted, trained rhetors and the mass sovereignty of the Athenian democracy.15 But the "Hymn to Logos" contains Isocrates' most succinct commentary on the nature of rhetoric as ethical and political discourse. Combining traditional components of artfulness and principle with a pragmatic requirement, Isocrates' ideal is something more than Aristotle's requirements for persuasion: logos, ethos, and pathos. For Isocrates, the skillful, proper use of words does more than persuade; it also embodies duty and promotes action.
For the performative component of Isocrates' rhetorical ideal, logos politikos must be artful. Athenian audiences were demanding audiences, expecting a high degree of art and competence from speakers. If a speech was not understood, believed, and enjoyed by the audience, it was ineffective by Athenian standards. The audience will not be convinced the speaker has the authority to speak. Logos politikos must be principled, because only policies appealing to the ethics of the audience ultimately serve the interests of the audience; audiences will not embrace an unprincipled speaker as a leader. And logos politikos must be pragmatic, for a speech which only advocates an ideal policy without respect for what its audience wants and can accomplish is nothing more than a set piece with no chance to achieve the policy it advances. As will be seen, these aspects of the ideal do not stand alone; art, principles and pragmatism must exist together in a unified whole, each component begetting, creating and sustaining the other.
In the "Hymn to Logos" and other speeches, Isocrates places his emphasis on the importance of morality and practicality in his rhetorical ideal, spending less time on the role of artistry. Perhaps this is because Isocrates was not a gifted speaker and disseminated his thought in written "speeches" to be read or delivered by others. Possibly, because artful speech was a bare minimum for the demanding Athenian audiences, the need for artistry was a given.16 Additionally, Isocrates' competing Sophists focused on the modes of persuasion. Concentrating more on the ethical and practical aspects of oratory was a way for Isocrates to distinguish himself from their schools.
Nevertheless, several of the speeches stress the necessity of art in effective political speech. Isocrates wrote that the "power to speak well is taken as the surest index of a sound understanding."17 This fragment reveals the dual nature of Isocrates' belief in the importance of artistry in speech. Effective political speech must engage its audience. That is the most basic requirement. A speech that fails to connect the minds of its audience members to the message of the speaker is of no use. More importantly to Isocrates, art is not only a function of effective communication, it advances the effectiveness of a political speech by convincing the audience of the speaker's authority to speak. This takes the speaker beyond his ability to project his thoughts or entertain his audience; it gives the audience a reason to believe, and ultimately, be persuaded.
In the Antidosis, Isocrates praises the unique artistry of political speech, and in so doing elaborates on the ethico-performative nature of his rhetorical ideal.18 He extols logos politikos as a form of speech more likely to serve the best interests of the polis, as opposed to epideictic speeches given for purely ceremonial purposes or forensic speeches made for the advancement of a personal matter through the courts. In this speech Isocrates explains the important role of artistry in a political speech. He identifies it as a subset of prose oratory which is at once more relevant to the interests of the polis and more beautiful, as if contending that the more noble the purpose of the speech, the more artful the words:
First of all, then, you should know that there are no fewer branches of composition in prose than in verse. For some men have devoted their lives to researches in the genealogies of the demi-gods; others have made studies in the poets; others have elected to compose histories of wars; while still others have occupied themselves with dialogue, and are called dialecticians . . . . For there are men who, albeit they are not strangers to the branches which I have mentioned, have chosen rather to write discourses, not for private disputes, but which deal with the world of Hellas, with affairs of state, and are appropriate to be delivered at the Pan-Hellenic assemblies—discourses which, as everyone will agree, are more akin to works composed in rhythm and set to music than to the speeches which are made in court. For they set forth facts in style more imaginative and more ornate . . . they use throughout figures of speech in greater number and of more striking character. All men take as much pleasure in listening to this kind of prose as in listening to poetry . . . . 19
There really is no reason to believe that the deliberative oratory of his day was any more "ornate" or artful than the forensic speeches where citizens, usually members of the elite political class, argued for their lives or property. Nevertheless, Isocrates championed political speech as a discrete art loftier in form because it is loftier in purpose. The practice of political speech must contain a component of artistry. By arguing that political speech is worthy of higher praise due to the splendor of its prose, Isocrates believed that the effective use of tropes and rhythms is critical to persuasive political speech. In fact, Isocrates distills the theory down to its basic elements by writing in the Panathenaicus that his political discourses are written "in a style rich in many telling points, in contrasted and balanced phrases not a few, and in the other figures of speech which give brilliance to oratory and compel the approbation and applause of the audience."20 Here, Isocrates emphasizes the dual effect of artful speech: oratorical flourishes allow the speaker's message to be heard, and in Athens, artistry "forces" the audience to approve of the speaker and his message. Artistry begets authority, which leads to persuasion.
Commentators have characterized Isocrates' rhetoric as "one of the most distinctive in Greek; the diction is pure, the expression full in the extreme, rhythmical, highly antithetical, but the jingling excesses of Gorgias are avoided."21 In practice he availed himself of the full range of artistic conventions of speech, giving his words their power and influence, establishing him as among the greatest rhetoricians of his day. Isocrates argues for the importance of rhetorical artistry as a necessary component of effective political speech in his references to the art and in his practice of it.
But requiring artistry as a component of effective speech merely placed Isocrates in line with all of the Sophists who came before him. It was standard procedure to teach the Athenian youth the tropes and qualities of artful speech.22 Isocrates distinguished his rhetorical ideal, and attempted to move his teachings away from the Sophists and toward the philosophical schools, by adding a component of morality to his conception of ideal rhetoric. For Isocrates, the morality component had two aspects: the personal ethics of the speaker and the benefit to the polis of the policies advanced by the speaker. This elaboration beyond artistry gives the speaker's performance credibility; his speech has a higher degree of persuasive impact when it appeals to the common values of the audience.23 The necessity of morality and propriety in the speaker himself is set forth in the "Hymn to Logos": "and discourse which is true and lawful and just is the outward image of a good and faithful soul."24
Isocrates intended the "Hymn to Logos" to be a moral or ethical instruction, a course for effective leadership. Isocrates instructed the King of Cyprus that for him to have credibility as a speaker, for his people to know that he has a "good and faithful soul," his speech to the people must be "true and lawful and just."25 A speech performance has no merit, cannot be seen as worthy of political action by an audience, unless the speaker engages in ethical discourse by speaking truthfully.
For Isocrates a speaker was ethical if he was "true and lawful and just." Commentators have restated these Isocratean morals or values as dikaiosyne kai sophrosyne—justice and temperance.26 The values of justice and temperance are conservative notions relative to the preservation of the polis. To be moral was to be faithful to existing norms. Tolerance, innovation, the ability to see all sides of an argument, or any liberal or reformative values leading to the progress of the collective, go unmentioned. As shown above, this is a dramatic parallel to Webster's conservatism.27
Beyond personal ethics, Isocrates' rhetorical ideal requires a speaker to promote an ethical policy. An ethical policy for Isocrates meant any action which protected the political and economic well being of the polis. For Isocrates, what the "well being of the polis" meant is difficult to grasp. It appears to change as he ages. But one element is the restoration of Athens' pan-Hellenic status.28 He longed to reinstate Athens as a Greek rather than Attic capital. The "Hymn to Logos" announces his elevation of pragmatism, the restoration of status to an ethical imperative through his discussion of the role of ethical speech in a society:
there is no institution devised by man which the power of speech has not helped us to establish . . . and if it were not for these ordinances we should not be able to live with one another. It is by this also that we confute the bad and extol the good. Through this we educate the ignorant and appraise the wise . . . .29
Because speech has the power to create and preserve an ordered society, it must be employed to further those ends. Speech should be the champion of justice and temperance. It should conserve those values which preserve norms and stave off decay.30 Preservation of the integrity and status of the polis are the ethical imperatives of Isocrates' logos politikos.
The pragmatism of an argument is the final component of his rhetorical ideal because Isocrates elevated pragmatism and the conservation of historical status to the level of ethical imperatives. But what did pragmatic or practical mean to Isocrates? Isocrates' rhetorical innovation was in carving out a middle ground for rhetoric between persuasion in the speakers' self-interest, and oratory supporting solely philosophical ends. As such, the meaning of pragmatic speech in the rhetorical ideal exists in what it is not. A speech is not practical or pragmatic if it only promotes the limited interests of the speaker. A speech is not pragmatic or practical if it only advocates ideological or philosophical objectives, without considering how the policy will actually preserve the polis. Isocrates has been aptly described as the rhetorician of the "politically possible."31 For Isocrates, then, a speech is practical if it advances policies relevant to the goals of an audience, and which the audience can achieve.
In sum, the components of Isocrates' rhetorical ideal—artistry, morality and practicality—are Isocrates' standards for effective political speech, his rhetorical ideal. A speaker must convey his authority through his artistry and command of the language. The speaker must have credibility through his expressions of widely held values. And his message must be practical in that it argues in favor of the goals of the audience while promoting the preservation of the polis. According to Isocrates, these attributes are the elements of effective political speech that promote action.
What, then, does "effective political speech" mean? If a speech contains these attributes, what is the result? The simple answer from a rhetorical perspective is that it persuades the audience; the audience will accept and act upon the arguments of the speaker. But because this essay discusses logos politikos, a larger question emerges regarding the long-term effect of a political speech on the well-being or existence of the political community. What changes occur among the audience, the polity, because of the political speech? Every political orator is a product of his time, and his motives in speaking are determined by them. If his speech is effective, it results in a desired effect: a vote, a change of opinion or policy, an agenda shift, etc. Isocrates' agenda in speaking was for the preservation of Athens as a polis by recapturing its pan-Hellenic status.
* © James Lupo 2006. Clinical Assistant Professor of Law, Northwestern University School of Law. Thanks to Jessica Rose Mullan for her insights and research assistance.
1 Isocrates, To Nicocles 3.6-3.7. For this essay, the author relied on the translation of Isocrates' speeches contained in Isocrates: Letters and Speeches (George Norlin ed., Harv. U. Press 1980).
2 Daniel Webster, The Papers of Daniel Webster: Speeches and Formal Writings vol. 1, 255-56 (Charles M. Wiltse & Alan R. Berolzheimer eds., U. Press N. Eng. 1986).
3 See generally Stephen A. Larrabeee, Hellas Observed: The American Experience of Greece 1775 - 1865 (N.Y.U. Press 1957).
4 Id. passim.
5 The Great Speeches and Orations of Daniel Webster 57-76 (Edwin P. Whipple ed., Little, Brown & Co. 1879).
6 Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).
7 Gibbons v. Ogden, 22 U.S. 1 (1824).
8 Thurlow v. Massachusetts, 46 U.S. 504 (1847).
9 Ekaterina V. Haskins, Logos and Power in Isocrates and Aristotle 29 (U. of S. Carolina Press 2004).
10 Id. at 31.
11 See Josiah Ober, Mass and Elite in Democratic Athens: Rhetoric, Ideology, and the Power of the People 315 (Princeton U. Press 1989) (discussing Attic orators and their role in shaping the ideological identity of the polis).
12 Takis Poulakos, Speaking for the Polis: Isocrates' Rhetorical Education 68 (U. of S. Carolina Press 1997).
13 See id. at 68-70, 75.
14 Isocrates, supra n. 1, at 3.5-3.9.
15 Josiah Ober, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule 265-73 (Princeton U. Press 1998).
16 Robert J. Bonner, Lawyers and Litigants in Ancient Athens: The Genesis of the Legal Profession 163 (U. Chi. Press 1927) (indicating that Athenian audiences took a keen delight in good oratory whether in the Assembly or the law courts or the lecture halls of the Sophists. The language must be suited to the subject, the delivery pleasing and the gestures appropriate. Their attitude toward oratory was much the same as our attitude toward orchestral music.).
17 Isocrates, supra n. 1, at 3.7.
18 Isocrates, Antidosis, 15.45-15.47 in Isocrates: Letters and Speeches (George Norlin ed., Harv. U. Press 1980).
19 Id. (emphasis added).
20 Isocrates, Panathenaicus, 12.2 in Isocrates: Letters and Speeches (George Norlin ed., Harv. U. Press 1980).
21 George Kennedy, The Art of Persuasion in Greece 174 (Princeton U. Press 1963).
22 George Kennedy, A New History of Classical Rhetoric 30-63 (Princeton U. Press 1994).
23 Werner Jaeger, Paideia: The Ideals of Greek Culture vol. 3, 91 (Gilbert Highet trans., Oxford U. Press 1971).
24 Isocrates, supra n. 1, at 3.7.
25 Id. at 3.6-3.7.
26 Poulakos, supra n. 12, at 27.
27 See infra pt. III.
28 Ober, supra n. 15, at 254-56.
29 Isocrates, supra n. 1, at 3.6-3.7.
30 Poulakos, supra n. 12, at 52 (discussing fourth century political discord and devastation in the aftermath of the Peloponnesian War as affecting Isocrates' conservatism).
31 Id. at 68.