by Stuart Streichler. Charlottesville, VA: University of Virginia Press, 2005. 304pp. Cloth $39.50. ISBN: 9780813923420.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College. Email: tobias.gibson [at] westminster-mo.edu.


When I was asked to review this book, I was somewhat surprised to note that it had been published in 2005. I was not sure that I would benefit from a book that might be dated. I quickly learned that I would learn a great deal from the book, and that much of Justice Benjamin Curtis’s jurisprudential ideas still have impact in today’s political climate.

Streichler provides an in-depth look at one of the original sources of the growth and promotion of the Constitution in the 1800’s. This book is well researched, and clearly addresses the stated goal of examining Curtis’s “constitutional principles, interpretations, and arguments in the context of his times” (p.xi). The depth and breadth of Streichler’s research is impressive, and his dedication to use of original documents is a testament to the efforts he put into this work. This book should be of interest to legal and judicial scholars, and to those who teach or research in the field of American Political Development. The treatment of Justice Curtis’s dissent in DRED SCOTT v. SANDFORD (1857) and Curtis's prior and subsequent remarks about slavery and the rights of former slaves may be useful to those who study race and politics. The chapter dedicated to Curtis’s defense of Andrew Johnson during his impeachment trial should be required reading for students of American Politics or the presidency.

This book is not a biography of Justice Curtis’s life, as such, but instead a study of his impact on constitutional law and development. The Introduction and first two chapters lay out the course of the book. The introduction is dedicated primarily to discussion of the Civil War in American constitutional history, and the major role that Curtis played in the buildup and aftermath of that crisis. The first chapter, “In the Whig Tradition,” is a precursor of sorts, detailing the life of and influences on Curtis before he became a Supreme Court justice. Of particular interest is that Curtis’s early career included a stringent legal defense of slavery and the Fugitive Slave Act in COMMONWEALTH v. AVES (1836), a case before the Massachusetts Supreme Judicial Court. In the second chapter, Streichler does an excellent job of discussing Curtis’s understanding of the Fugitive Slave clause of the Constitution and the laws that supported this clause, in his roles as both attorney and justice. Early in his Supreme Court tenure, Curtis continued to recognize the rights of slave owners, leading him to have a reputation as a “slave catching Judge” (p.39).

Chapters 3, 4, and 5 provide the heart of Streichler’s effort. Independently, each offers a window into Curtis’s jurisprudence as a sitting justice. Together, these chapters provide strong support for Streichler’s central claim that [*385] Justice Curtis, a force in constitutional interpretation for decades following his abbreviated time on the bench, “was at the center of a contest over American constitutionalism that was waged not in abstract terms but in actual controversies over power and individual rights” (pp.xi-xii).

The third chapter focuses on Curtis’s majority opinion in COOLEY v. BOARD OF WARDENS (1852), and its impact on the contest between the national and state governments over control of commerce. In COOLEY, Curtis stepped away from the debate over whether the control of commerce was exclusively the domain of Congress or influenced concurrently by both levels of government. Streichler argues that Curtis offered a weighted compromise between the positions; a compromise that “reflected Curtis’s Whig nationalism” (p.74). The COOLEY opinion “enhance[d] federal judicial power in a way that had eluded [Joseph] Story, [Daniel] Webster, and [John] Marshall” (p.75), and served as the “doctrinal engine for an unprecedented exercise of federal judicial power over states” (94).

Justice Curtis’s influence on understanding and applying due process is the discussion of the fourth chapter. In MURRAY’S LESSEE v. HOBOKEN LAND AND IMPROVEMENT COMPANY (1856), Curtis wrote the Supreme Court’s initial interpretation of the Fifth Amendment’s due process clause. The Justice’s unequivocal position was that due process provided “appropriate ground for judicial review of legislation” (p.99). Not only did this argument strengthen the position of the Court viz. Congress, but it also served as the “’definitive statement’ of the meaning of due process when the Fourteenth Amendment was being framed a decade later” (ibid.). The resulting significance of this case, according to Streichler, is that justices in future cases directly utilized the Justice’s understanding to recognize an individual right to an attorney in some instances. Notably, POWELL v. ALABAMA (The Scottsboro Boys Case) (1932) cites the Curtis opinion.

Justice Curtis is perhaps most famous for his dissent in DRED SCOTT. All nine of the justices offered written opinions in that case, which is not surprising given the contentious nature of slavery at the time. Justices John McLean and Curtis dissented, although Curtis’s dissent was by far the more influential. As Streichler notes, “the antislavery press and the Republican Party turned mainly to Curtis’s opinion for support. [Senatorial candidate Abraham] Lincoln … carried Curtis’s opinion as a reference when debating Senator Stephen A. Douglas” (120). In the opinion of the Court, Chief Justice Roger Taney claimed that blacks, free or slave, had no citizenship rights, because the Framers did not include them when writing the Constitution. Curtis claimed, contrary to Taney, that blacks had voted to ratify the Constitution in five states, and that it would be peculiar “if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who are among those by whom it was established” (p.127). DRED SCOTT was Curtis’s last case on the Supreme Court. He resigned, troubled by Taney’s refusal to allow him access to a revised court opinion. This episode is an excellent example of politics on the Supreme [*386] Court, and Streichler handles the story ably.

Not to diminish the impact of Curtis’s opinions on the bench, but perhaps his most important contribution to the understanding of the Constitution came in his post-Court career. Curtis provided two lessons in executive powers and politics which continue to resonate today. Chapter 6 chronicles Curtis’s views of the president’s war powers, while chapter 7 details Curtis’s defense of President Andrew Johnson during the first Senate impeachment trial in American history. Curtis’s main issue with Lincoln’s handling of the Civil War was that the president had overstepped the presidential powers of the Constitution and had emancipated the slaves without preparing them for success as citizens. Curtis’s public efforts, through a pamphlet he penned, seemed to draw Congress to act, which was critical to his argument. In the book’s seventh chapter, Streichler offers a persuasive argument that Curtis, nearly singlehandedly, convinces a Senate that was previously bent on expelling Johnson from the White House to reconsider, and to acquit on all articles of impeachment. Curtis’s base argument was that politics should not play a role in impeachment, and that “[t]he fundamental point … was that a president may be impeached only for ‘offences which strike at the existence’ of government” (p.183). Indeed, the author quotes one senator who voted to acquit, as saying “Judge Curtis gave us the law, and we followed it” (p.173).

Much of the political climate when the book was published, and today, lends itself nicely to the lessons first taught by Curtis. In 2005, as critics were calling for the impeachment of George W. Bush, Streichler wrote a book that provided a fine chapter on the understanding of impeachment, and what is impeachable, during the nation’s first presidential impeachment trial. As there is now a call from some of President Obama’s critics for his impeachment due to his alleged actions in elections and inactions with the BP oil spill, this chapter remains relevant today. Indeed, Curtis’s defense of Johnson may provide a baseline for what constitutes an impeachment offense for the duration of the republic.

However, as good as this book is, there are several small issues that I with it. There are places where I would like to see recognition of current theories and bodies of work. For example, in chapter 3 Streichler writes that Curtis’s opinion of the Court in COOLEY v. BOARD OF WARDENS (1852) “was purposefully concise, leaving unstated anything that would break up his majority” (p.79). Although the discussion is about a case decided a hundred and fifty years prior, it is surprising to me that the author failed to mention, even in a footnote, works such as Maltzman, Spriggs, and Wahlbeck’s CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME, Epstein and Knight’s THE CHOICES JUSTICE MAKE, or any of the “strategic model” progeny of those works.

Most facially, the title of the book is somewhat misleading. While Streichler chronicles the importance of Benjamin Robbins Curtis’s legal interpretations, Curtis’s Supreme Court career was abbreviated. Much of the book is dedicated to Curtis’s career before he took a seat on the High Bench and after [*387] he left it. Much of the impact of Curtis’s career was an attorney rather than as a jurist. And, perhaps his most significant effect on our understanding of the Constitution came not as a Supreme Court justice, but as an attorney on the Senate floor.

Overall, however, this is an excellent treatment of justice whose impact has been largely overlooked. The contributions of this work far outweigh any minimal weaknesses found by the reviewer. I highly recommend this book to judicial, public law scholars, and historians.

Epstein, Lee and Jack Knight. 1998. THE CHOICES JUSTICE MAKE. Washington, D.C.: CQ Press.

Maltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. 2000. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. Cambridge: Cambridge University Press.

COMMONWEALTH v. AVES, 18 Pickering (Mass.) 139 (1836).
COOLEY v. BOARD OF WARDENS, 12 How. 299,(1852).
DRED SCOTT v. SANDFORD, 19 How. 393 (1857).
POWELL v. ALABAMA, 287 U.S. 45 (1932).

© Copyright 2010 by the author, Tobias T. Gibson.